Appeal No. 2003-0656 Page 2
Application No. 29/124,773
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Hong Kong Apparel, Vol. II (1996), copy in design library, p.
203, Metimex S.A. (Metimex).
Sportpages Catalog, item 18 F (Summer, 1980), copy in design
library, p. 18 (Sportpages).
The appealed design claim stands rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Metimex in view of
Sportpages. We reverse for the reasons that follow.
OPINION
Upon careful review of the respective positions advanced by
appellant and the examiner with respect to the rejection that is
before us for review, we find ourselves in agreement with
appellant’s viewpoint in that the examiner has failed to carry
the burden of establishing a prima facie case of obviousness.
Accordingly, we will not sustain the examiner's rejection.
“In determining the patentability of a design, it is the
overall appearance, the visual effect as a whole of the design,
which must be taken into consideration.” In re Rosen, 673 F.2d
388, 390, 213 USPQ 347, 349 (CCPA 1982). “In ornamental design
cases, a proper obviousness rejection based on a combination of
references requires that the visual ornamental features (design
characteristics) of the claimed design appear in the prior art in
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