Appeal No. 2003-0656 Page 5
Application No. 29/124,773
designer of ordinary skill in the art from Metimex taken with
Sportpages.
While we agree with the examiner that the identity of a
specific material is not part of the claimed design, the visual
impact of the materials used is clearly a portion of appellant’s
overall design. The Metimex shorts design is characterized by
the appearance of white lines and patches at the sides thereof,
which patches do not extend to the inside surface of the leg
openings of the shorts design. Consequently, the Metimex shorts
design yields an overall distinct appearance as to the relative
roughness and consistency of the surface appearance of the sides
as well as the lack of an extenson thereof to the inside of the
leg openings as compared to the claimed design as clearly shown
by a comparison of the Metimex shorts design with appellant’s
drawing figures, particularly figure 4.
Moreover, even if it would have been obvious to a designer
of ordinary skill in the art to modify the Metimex shorts by
incorporating the design features of the sides of the shorts of
the Sportpages shorts therein as contended by the examiner
(answer, page 3), such a modification would not result in the
claimed design but rather a design wherein the sides of the
shorts of Metimex includes the look of a finer finish rather than
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