Appeal No. 2003-0656 Page 3
Application No. 29/124,773
a manner which suggests such features as used in the claimed
design.” In re Harvey, 12 F.3d 1061, 1063, 29 USPQ2d 1206, 1208
(Fed. Cir. 1993) (citing In re Cho, 813 F.2d 378, 382, 1 USPQ2d
1662, 1663 (Fed. Cir. 1987); In re Carlson, 983 F.2d 1032, 1038,
25 USPQ2d 1207, 1212 (Fed. Cir. 1992). “If, however, the
combined teachings suggest only components of a claimed design,
but not its overall appearance, an obviousness rejection is
inappropriate.” Id.
Here, we agree with appellant’s position since the examiner
has not established that the overall visual impression of the
claimed athletic shorts design would have been suggested by the
applied prior art to a designer of ordinary skill in the art.
In fashioning the rejection before us for review, the
examiner uses Metimex as a basic reference; that is, as a Rosen-
type reference and employs Sportpages to suggest modifications of
Metimex that, according to the examiner, would have been obvious
to a designer of ordinary skill in the art. The shorts design
depicted in Metimex, like appellant’s claimed design, portrays a
visible elastic waste band and elongated side areas or panels
running from the waste band to essentially the bottom of the
outside of each leg with those side areas/panels possessing an
outer surface area appearance that is visually distinct from the
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