Appeal No. 2002-2156 3
Application 29/113,438
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellants’ specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the examiner. As a consequence
of our review, we make the determinations which follow.
There are two rejections before us. The first is based upon the judicially created
doctrine of obviousness-type double patenting and the second is under 35 U.S.C. §103.
In the first rejection, it is the examiner’s position that the present claim would extend the
monopoly of the Vonarburg patent because it would have been obvious to modify the
patented Vonarburg toothbrush design to meet the terms of the toothbrush claimed in
the application in view of the showings of Largever and Hyman. In the second
rejection, the patented Vonarburg toothbrush design is utilized as a primary reference,
with the examiner’s theory being that the design shown in the application claim would
have been obvious under Section 103 in view of the combined teachings of Vonarburg,
Largever and Hyman. However, because the claim in a design patent is the article
illustrated in the drawings therein, the issue with regard to both rejections is the same,
namely, whether it would have been obvious to modify the toothbrush disclosed in the
Vonarburg design patent in such a manner as to render obvious the toothbrush design
presented in the application.
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