Appeal No. 2000-2150
Application 29/083,483
present affidavits within 37 CFR § 1.132 to provide evidence of
ornamentality. As part of a response, appellants submitted a
first declaration by Daniel M. Eggert on May 5, 1999. Since the
examiner maintained the rejection in the final rejection mailed
on July 19, 1999, appellants submitted a second response via
facsimile on October 11, 1999, including a second declaration by
Mr. Eggert.
Because the examiner erred in failing to consider the merits
of these two declarations, we reverse the rejection. Paragraph 2
of the initial declaration by Mr. Eggert states that the "intent
behind the creation of the wrench head was in part ornamental."
Similarly, in paragraph 4 of this declaration, Mr. Eggert stated
that "the thought behind the creation of the wrench head was in
part ornamental." As explained in paragraph 2 of the second
declaration, Mr. Eggert clarified this "in part" language by
stating that this language "was intended to mean that the head
and the handle have different thickness, and, therefore, there
must be a line of demarcation and the existence of the line of
demarcation is functional." By this, we understand Mr. Eggert as
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