Appeal No. 2002-1818
Application 29/094,432
Accordingly, for the reasons set forth by appellant on pages
5 and 6 of the brief, and pages 3 and 4 of the reply brief, we
find that the expanded package shown in Figure 1 of Zoss differs
significantly from the expanded carton claimed by appellant and
that major modifications would be required to make the expanded
package of Zoss, with its geodesic (curved) areas and generally
oval configuration, look like appellant’s claimed expanded carton
having tapering flat, planar triangular areas and a hexagonal top
opening. Thus, we conclude that Zoss does not qualify as a basic
design reference meeting the Rosen requirement and for that
reason alone would refuse to sustain the examiner’s rejection
under 35 U.S.C. § 103.
As for the examiner’s assertions on pages 5 and 6 of the
answer that the visual impression of both appellant’s carton and
that of Zoss created on any prospective buyer would be basically
a regular rectangular shaped carton, and that the expanded
configuration of appellant’s carton is “merely a functional
feature of the claimed design,” we find such position to be
untenable. As emphasized by appellant in both the specification,
brief and reply brief, the claimed design is directed to an
expanded snack carton, not the carton in its rectangular
parallelepiped form. Moreover, the mere fact that the expanded
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