Appeal No. 2001-2294
Application 29/097,935
the elected embodiment. The “drawings” of this application
are in the form of photographs filed with the application on
December 17, 1998. Those photographs, as filed, showed three
chair embodiments (i.e., Figures 1-5, Figures 6-10 and Figures
11-15) described as showing appellant’s new design and one
table (Figures 16-19) showing the new design. Figures 6-19 of
the application were subsequently canceled (see Paper No. 4)
“without prejudice to Applicant’s right to file divisional
applications” covering such designs.
The appealed design claim stands rejected under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the
enablement requirement of this portion of the Statute. More
particularly, it is the examiner’s position that the claimed
design is not described in such full, clear, concise and exact
terms as to enable any person skilled in the art (i.e., a
designer of the claimed type of article) to make and use the
same. In the examiner’s opinion,
[t]he claim is non-enabling because one cannot
understand the exact configuration of the seat of the
chair in Figures 1 through 5. Specifically, Figures 4
and 5 are not clear enough to distinguish the exact
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