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 NextLast modified: November 3, 2007