Appeal No. 2000-2151 Page 5
Application No. 29/099,783
We agree with the Appellant that there is no motivation to replace the shoulder B of the French patent
with the rounded shoulder of the Sunsparklers bottle (Brief, page 3). We also agree that even if a
designer of ordinary skill were to attempt to make the modification, one would not arrive at a shoulder
which is visually similar to that disclosed by the invention (Brief, pages 3 and 4). Note particularly that
the conical portion we have labeled “C” is not depicted in either reference. Nor is this aspect of the
design depicted in Fenton, the reference cited by the Examiner to show the conventional threaded neck
portion of the bottle.
As an aside, we note that neither any evidence nor any argument has been presented with
respect to the appearance of the bottom of the bottle as shown in Figure 3. The Examiner bears the
initial burden of establishing a prima facie case of unpatentability. In re Oetiker, 977 F.2d 1443,
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