Appeal No. 2000-1221
Application No. 29/070,030
that the prior art references applied by the examiner are not
sufficient to establish a prima facie case of obviousness of
the claimed design. Accordingly, we cannot sustain the4
examiner's obviousness rejection.
We note, moreover, that, although appellant made no such
argument in the brief, Bonko '923 does not appear to qualify
as prior art under 35 U.S.C. § 102 with respect to the claimed
design on appeal. The Bonko '923 patent was issued to Mark
Leonard Bonko (appellant) on February 11, 1997 on design
application number 29/052,099, filed March 22, 1996. Since
the inventor of the Bonko '923 patent is the same as the
inventor of the claimed design on appeal, the Bonko '923
patent is not available as prior art under 35 U.S.C. § 102(a)
or (e). Further, since the Bonko '923 patent was not issued
more than one year prior to the April 25, 1997 filing date of
the instant design application, it is not available as prior
art under 35 U.S.C. § 102(b).
As we have determined that the prior art is insufficient to establish4
a prima facie case of obviousness of the claimed design, it is not necessary
for us to consider the declarations of Ross Fischer and Mark Carpenter filed
by the appellant with the brief.
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