Appeal No. 2002-1818
Application 29/094,432
carton may have functional aspects does not allow the examiner to
assume lack of ornamentality. In this case, we agree with
appellant’s assessment on page 2 of the reply brief that because
there are many other ways to allow for access to a carton of the
type involved in the present application and for removal of its
contents, the particular appearance of appellant’s claimed
expanded carton design has a primarily ornamental purpose and
cannot be ignored.
Moreover, even if we were to assume for the sake of argument
that Zoss was a Rosen-type reference, we must agree with
appellant (brief, pages 9-11, and reply brief, pages 4-6) that
Zoss and Luckett are not properly combinable in the manner urged
by the examiner, because Zoss explicitly “teaches away” from a
score line configuration like that seen in Luckett. More
specifically, Zoss (col. 5, lines 1-53) teaches that the score
lines are spaced from the side edges of the front and back panels
and from the bottom edge (44) of the panels, with said spacing
providing “rigidity to panels 18 and 28 to assist in their return
to a static, planar condition” (col. 6, lines 35-39) and also
contributing to achieving the geodesic (curved) configuration of
the package in its flexed or expanded condition. In addition, as
noted by appellant in the brief and reply brief, language
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