Appeal No. 2002-2156 4
Application 29/113,438
The guidance provided by our reviewing court for evaluating the obviousness of
design claims under 35 U.S.C. § 103 thus is applicable to both rejections. The
standard is whether a design would have been obvious to a designer of ordinary skill in
the articles involved. In re Nalbaldian, 661 F.2d 1214, 1216, 211 USPQ 782, 784
(CCPA 1981). To support a holding of obviousness there must be a reference, a
something in existence, the design characteristics of which are basically the same as
the claimed design. Once a reference meets the test of a basic design, reference
features may reasonably be interchanged with or added from those in other pertinent
references. In re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982). De
minimis changes which would be well within the skill of an ordinary designer of the
articles involved do not create a patentably distinct design. In re Carter, 673 F.2d 1378,
1380, 213 USPQ 625, 626 (CCPA 1982). It is distinctiveness in overall appearance of
an object when compared with the prior art, rather than minute details or small
variations in configuration, that constitutes the test of design patentability. In re
Lapworth, 451 F.2d 1094, 172 USPQ 129 (CCPA 1971).
We agree with the examiner that Vonarburg constitutes a Rosen reference
because it has design characteristics which are basically the same as the claimed
design. We also agree that two differences exist between the Vonarburg toothbrush
and the toothbrush presented in the application, in that the configurations presented by
the distal ends of the bristles are not the same and Vonarburg does not disclose a color
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