Appeal No. 2000-2150
Application 29/083,483
indicating that because of the different thicknesses between
the head and the handle there must be some kind of line of
demarcation that is functional in nature to transition between
the different thicknesses. Mr. Eggert continues in paragraph 2
of the second declaration by stating "[h]owever, the particular
shape of the line is entirely ornamental. In other words, the
line of demarcation being straight is entirely ornamental."
Correspondingly, Mr. Eggert previously stated in paragraph 3 of
the first declaration that this line of demarcation was
"ornamental" and a feature of the design which "distinguishes the
design depicted in figs. 1 to 5 from open-end wrench heads of
others."
The weight of the evidence before us, based primarily upon
the two declarations by Mr. Eggert considered collectively,
indicates that the rejection of the design claim on appeal under
35 U.S.C. § 171 must be reversed. The examiner has no
countervailing line of reasoning or argument, in our view, on
which to conclude at the bottom of page 5 of the answer that
appellants have "failed to establish that said straight line of
demarcation was created with 'the thought of ornament' and not a
product of functional details which also looks [sic, look]
ornamental."
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