Appeal No. 2002-2307
Application No. 29/105,570
applied reference designs, and the respective viewpoints of
appellant and the examiner. As a consequence of our review, we
make the determination which follows.
We do not sustain the rejection of appellant's design claim
for the reasons set forth below.
Pursuant to 35 U.S.C. § 171, one may obtain a design patent
for "any new, original and ornamental design for an article of
manufacture." To obtain such a patent, however, one must satisfy
the patentability requirement of 35 U.S.C. § 103. See In re
Borden, 90 F.3d 1570, 1574, 39 USPQ2d 1524, 1526 (Fed. Cir.
1996). In the design patent context, the ultimate inquiry under
section 103 is whether the claimed design would have been obvious
to a designer of ordinary skill who designs articles of the type
involved. See In re Rosen, 673 F.2d 388, 390, 213 USPQ 347, 349
(CCPA 1982).
To combine prior art designs, one must first find a single
reference, "a something in existence, the design characteristics
of which are basically the same as the claimed design." In re
Rosen, 673 F.2d at 391, 213 USPQ at 350. Once this primary
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