Appeal No. 2000-1905
Design Application 29/095,094
particular design. It is particularly persuasive to us that
the prior art cited by the Examiner, and by Appellants in
their IDS, show many different structures of gripping
protrusions, which indicates that the choice of design is made
for primarily aesthetic, non-functional purposes. See
L.A. Gear, 988 F.2d at 1123, 25 USPQ2d at 1917 ("When there
are several ways to achieve the function of an article of
manufacture, the design of the article is more likely to serve
a primarily ornamental purpose."). The Examiner fails to
address this evidence. As to the question of subjective
intent, i.e., of whether Appellants created the design with
"thought of ornament," the fact that many other designs
existed for oil filter wrenches and similar articles is
sufficient evidence of intent to ornament by selection of the
pattern, spacing, and shape of the raised knobs.
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