Appeal No. 2002-1818
Application 29/094,432
OPINION
Having carefully considered the issues raised in this appeal
in light of the examiner's position and remarks as set forth in
the examiner’s answer (Paper No. 19, mailed February 25, 2002)
and appellant's arguments as set forth in the brief (Paper No.
18, filed December 18, 2001) and reply brief (Paper No 20, filed
April 29, 2002), it is our conclusion that the examiner's
rejection of the present design claim under 35 U.S.C. § 103 will
not be sustained. Our reasons 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 presented in the
application under consideration. The “ordinary designer” is one
who brings certain background and training to the problems of
panel (28) of the package in Zoss with the score line
configuration (elements 31, 32 and 33) of the Luckett package,
thereby resulting in an article (carton) the examiner
characterizes as being “strikingly similar in general overall
appearance of [sic, to] the claimed design” (answer, page 3).
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