Appeal No. 2001-0961
Application No. 08/108,133
items from the LaPine catalogue [answer, pages 2-3].
Appellant argues that the Octrahedron in Cube item is not a
proper primary reference because it has a design which is very
different from the claimed design and, thus, does not have an
overall visual impression that is basically the same as the
claimed design. Appellant also argues that the two reference
items contain no hint or suggestion to apply a feature of one to
the other. Appellant notes that the visual appearance of the two
items is very different. Appellant argues that the reference
items are non-analogous art because they are mathematical
teaching aids and have nothing to do with a sports ball display.
Finally, appellant argues that he submitted evidence that the
claimed invention satisfied a long-felt but unsolved need of
sports enthusiasts, but the examiner has failed to consider or
discuss such evidence [brief, pages 3-12].
The examiner responds that the reference items are analogous
and that the primary reference presents the overall appearance of
the claimed design [answer, page 4].
We do not sustain the examiner’s rejection of the design
claim on appeal for the reasons essentially argued by appellant
in the brief. There is no similarity in visual appearance
between the claimed design and the two reference items. It is
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