Appeal No. 2003-0043
Application 29/065,720
OPINION
Having carefully considered the issues raised in this appeal
in light of the applied prior art references, the examiner's
remarks and appellant’s arguments, it is our conclusion that the
examiner's rejection of the present design claim under 35 U.S.C.
§ 103 is not sustainable. Our reasons for this determination
follow.
In determining the patentability of a design, it is the
overall appearance, the visual effect as a whole of the design,
which must be taken into consideration. See In re Rosen, 673
f.2d 288, 390, 213 USPQ 347, 349 (CCPA 1982). Where the inquiry
is to be made under 35 U.S.C. § 103, the proper standard is
whether the design would have been obvious to a designer of
ordinary skill who designs articles of the type involved. See In
re Nalbandian, 661 F.2d 1214, 1216, 211 USPQ 782, 784 (CCPA
1981). Furthermore, as a starting point when a § 103 rejection is
based upon a combination of references, 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, ornamental
features may reasonably be interchanged with or added from those
in other pertinent references, when such references are "so
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