Appeal No. 2003-1760
Application No. 29/159,145
Further, the examiner’s description at page 2 of the Final Rejection appears to
belie the position that the surface detail is poorly shown. The examiner refers to “fan-
like rib elements,” and a “random arrangement.” We find the drawings to reasonably
convey a ball having surface ornamentation of clusters of about 4 to 6 ribs, the ribs
within a cluster spaced closer together at one end than the other, with some of the ribs
bifurcating at one end into two joined ribs, and with the clusters arranged in seemingly
random orientations. How closely the claim may or may not match the model submitted
by appellant is not relevant to the present inquiry related to the effort required of the
ordinary designer to reproduce the claimed design.
With respect to the rejection under 35 U.S.C. § 103, the ultimate inquiry under
Section 103, in the design context, is whether the claimed design would have been
obvious to a designer of ordinary skill who designs articles of the type involved. Durling
v. Spectrum Furniture Co., 101 F.3d 100, 103, 40 USPQ2d 1788, 1790 (Fed. Cir.
1996).
As suggested by appellant, the Section 103 rejection appears founded on the
view that the claim is not understood. We agree with appellant that a case for
obviousness over Henderson has not been established. Figure 23 of the reference
merely depicts a seamed ball comprising a composite cover layer 2400 (Fig. 24).
Henderson col. 6, ll. 14-53.
While the examiner asserts that the differences between the claim and the
reference are de minimis, the rejection fails to specify what the differences are believed
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