Appeal No. 2001-0292
Application No. 29/076,553
design, but not its overall appearance, an obviousness rejection is inappropriate. See In re
Cho, 813 F.2d 378, 382, 1 USPQ2d 1662, 1663 (Fed. Cir. 1987).
We reverse the rejection under 35 U.S.C. § 103 of the design claim on appeal.
At the outset, we agree with the examiner’s views that Paine is a proper Rosen-type
primary reference having characteristics basically the same as the claimed design, as set
forth in accordance with the earlier-noted case law in this opinion. We also agree with the
so-related reasoning of the examiner that it would have been obvious to have modified
Paine in light of the showings of the rounded corners and the formation of a like overall
design that is basically an isosceles triangle in Lusker rather than the equilateral triangle of
Paine. We also agree with the examiner’s reasoning that it would have been obvious
within 35 U.S.C. § 103 for the ordinary designer to have omitted the flange at the top of the
bottle neck in Paine in view of the showing in Stoecker.
The answer does not satisfactorily address the claimed feature that two of the
corners of the bottle have been truncated . As set forth at page 6 of the answer, the
examiner merely considers this to be “a de minimis difference since it does not have a
significant impact on the overall appearance of the design.” On the other hand, appellant
argues at the top of page 5 of the brief that none of the three applied references teach or
suggest truncated corners as in the claimed design. Appellant correctly points out that all
three corners of the bottled disclosed in Paine are pointed and that all three corners of the
bottle disclosed in Lusker are rounded. We find ourselves in agreement with appellant’s
conclusion: that two corners of the triangle bottle are different from the third corner as
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