Appeal No. 2002-1818
Application 29/094,432
under 35 U.S.C. § 103 of being a “something in existence.”
However, after careful consideration of the teachings of the Zoss
reference as a whole, we agree with appellant’s assessment in the
brief and reply brief that the expanded package seen in Zoss is
not a “something in existence” the design characteristics of
which are basically the same as the claimed design, and thus
conclude that Zoss is not a Rosen reference.
Like appellant, we note that the examiner’s position that
“the only difference resides in certain configuration of score
lines of the front and rear side panels” (answer, page 4), is in
error, because it fails to take into account the overall visual
impression created by the expanded package of Zoss, which visual
impression a designer of ordinary skill would have fully
appreciated after having read the specification of the Zoss
patent. More particularly, while Zoss discloses a package or
carton having score lines on its front and back surfaces, the
patent makes clear (col. 6, lines 3-15) that the arrangement of
the score lines therein allows the panels (18, 28, 46, and 60) to
be
flexed into a non-planar shape with edges 48, 56, 62, and 68
of panels 18, 24, 28, and 32, respectively, and edges 47,
78, 96, and 80 of panels 46, 54, 60, and 66 being open and
generally of an oval shape (emphasis added).
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