Appeal No. 2001-0961
Application No. 08/108,133
must be taken into consideration. In re Rosen, supra. However,
while the obviousness of a design must be evaluated as a whole,
the evaluation of the whole necessarily involves consideration of
what are indicated to be the distinguishing features of the
claimed design. See Petersen Manufacturing Co., Inc. v. Central
Purchasing, Inc., 740 F.2d 1541, 1548, 222 USPQ 562, 567 (Fed.
Cir. 1984). Additionally, when considering the patentability of
a design, the mere fact that there are differences between the
design and a prior art design is not alone sufficient to justify
the patentability of the design. In re Lamb, 286 F.2d 610, 611,
128 USPQ 539, 539 (CCPA 1961). It is the distinctiveness in
overall appearance of a design when compared to a prior art
design, rather than minute details or small variations in
configuration, which constitutes the test for design
patentability. In re Lapworth, 451 F.2d 1094, 1096, 172 USPQ
129, 131 (CCPA 1971).
We now consider how these principles and the arguments made
by appellant and the examiner affect our decision based upon the
record before us.
The examiner has pointed out why he finds that the overall
appearance of the claimed design would have been obvious to the
designer of ordinary skill in view of the teachings of the two
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