Appeal No. 2002-1818
Application 29/094,432
relating to such spacing of the score lines or flex allowing
means was added to independent claim 1 of the Zoss patent during
prosecution thereof specifically to distinguish from a score line
configuration like that in Luckett. Thus, the teachings of Zoss
when considered as a whole would have led a designer of ordinary
skill in the carton field in a direction divergent from the path
that was followed by appellant and discourage an expanded carton
with the claimed design.
As was made clear in In re Haruna, 249 F.3d 1327, 1335, 58
USPQ2d 1517, 1522 (Fed. Cir. 2001), 35 U.S.C. § 103 (and all the
case law interpreting that statute) applies with equal force to a
determination of obviousness of either a design or a utility
patent and, therefore, a prima facie case of obviousness in a
design application can be rebutted if the applicant can show that
the art in any material respect taught away from the claimed
invention. In this case, appellant has clearly demonstrated that
the Zoss patent teaches away from the claimed design.
Thus, even if Zoss were a Rosen reference, we have
determined that the evidence before us as a whole would not have
been suggestive of the modifications posited by the examiner and
thus of the distinctive ornamental appearance of appellant's
claimed expanded snack carton.
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