Appeal No. 2001-0292
Application No. 29/076,553
claimed is in no way taught or suggested by the Paine patent, the Lusker patent or the
Stoecker patent.
Within 35 U.S.C. § 103 the artisan would have found it obvious to have incorporated
the rounded nature of the corners in Lusker’s showings for each of the three corners in the
Paine bottle rather than, as the examiner apparently views, to have rounded only two of
the three corners. On the one hand, Lusker appears to show in the top plan view in Figure
1 as well as the bottom plan view in Figure 3 that the three corners of his isosceles
triangle-shaped bottle are rounded. On the other hand, however, the right side-left side
mirror image in Figure 4 appears to depict that the corners are truncated rather than
rounded. A similar conclusion is reached by us as to the respective views shown in
Figures 5 and 6. Similar conclusions are reached as to the second embodiment shown in
Figures 7 through 10. Thus, the true nature of the manner in which the three sides are
joined together is somewhat disharmonious according to the various showings in Lusker.
When properly applied as an ornamental design feature to Paine, we are thus
unable to agree with the examiner’s view that the truncated nature of the corners would be
de minimis in appearance and not have a significant impact on the overall appearance of
the claimed design. We are left to conjecture what may appear to be rounded corners in
some figures of Lusker and truncated corners in other showings in Lusker and how these
apparent different design approaches would impact upon the overall design of Paine. The
perspective view in Figure 1 of the claimed bottle clearly shows the front corner portion of
the two shorter sides having a different overall appearance than the truncated corner
portion to the rear on each side of the claimed design. This is emphasized when
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