Appeal No. 1999-1567
Design Application 29/035,428
from the block-shaped appearance. The well in the bottom is
shallow and has a large diameter. Thus, although Stolte
discloses stacking like-shaped containers, the container in
Stolte does not have a bottom well having the appearance of
the claimed design. If this were a utility application, we
might agree that it would have been obvious for utility
reasons to modify the shape of the bottom well of Bourcart so
that vials could be stacked on top of each other in view of
Stolte or, alternatively, that it would have been obvious to
modify the containers in Stolte to use a neck and cap of the
shape of Bourcart with a correspondingly shaped bottom well.
However, this is a design application and modifications must
be done for ornamental reasons. See In re Cho, 813 F.2d 378,
382, 1 USPQ2d 1662, 1664 (Fed. Cir. 1987) ("Although it may
have been obvious, from a utility standpoint, to place
cylindrical depressions in crown type caps and to include
flaps in the depressions, it does not follow that Cho's design
was obvious."); Harvey, 12 F.3d at 1063, 29 USPQ2d at 1208
("In ornamental design cases, a proper obviousness rejection
based on a combination of references requires that the visual
ornamental features (design characteristics) of the claimed
design appear in the prior art in a manner which suggests such
- 9 -
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007