Appeal No. 2001-0292
Application No. 29/076,553
The design claim stands rejected under 35 USC § 103. As evidence of
obviousness, the examiner relies upon Paine in view of Lusker, further in view of Stoecker.
We refer to the brief and the answer for the respective positions of the appellant and
the examiner.
OPINION
“In determining the patentability of a design, it is the overall appearance, the visual
effect as a whole of the design, which must be taken into consideration.” See In re
re Rosen, 673 F.2d 388, 390, 213 USPQ 347, 349 (CCPA 1982). Where the inquiry is to
be made under 35 U.S.C. § 103, the proper standard is whether the design would have
been obvious to a designer of ordinary skill who designs articles of the type involved. See
In re Nalbandian, 661 F.2d 1214, 1217, 211 USPQ 782, 785 (CCPA 1981). Furthermore,
as a starting point 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. Once a reference meets the test of a basic
design reference, ornamental features may reasonably be interchanged with or added
from those in other pertinent references, when such references are “so related that the
appearance of certain ornamental features in one would suggest the application of those
features to the other.” See In re Rosen, 673 F.2d 388 at 391, 213 USPQ 347 at 350
(CCPA 1982); In re Glavas, 230 F.2d 447, 450, 109 USPQ 50, 52 (CCPA 1956); In re
Harvey, 12 F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed. Cir. 1993). If, however, the
combined teachings of the applied references suggest only components of the claimed
2
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007