Appeal No. 1999-1567
Design Application 29/035,428
as taught by Stolte and further using a transparent material
for the container as taught by the reference to Kasin would
have been obvious to a designer of ordinary skill in the art
and would meet the appearance of the claimed design" (Final
Rejection, p. 2).
We refer to the final rejection (Paper No. 11) and the
examiner's answer (Paper No. 17) for a statement of the
Examiner's position, and to the appeal brief (Paper No. 15)
for Appellant's arguments thereagainst.
OPINION
Legal standards
The proper test for determining obviousness of a claimed
design under 35 U.S.C. § 103 is whether the design would have
been obvious to a designer of ordinary skill who designs
articles of the type involved. In re Nalbandian,
661 F.2d 1214, 1216, 211 USPQ 782, 784 (CCPA 1981). When a
§ 103 rejection is based upon a combination of references,
"there must be a reference, a something in existence, the
design characteristics of which are basically the same as the
claimed design in order to support a holding of obviousness."
In re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).
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