Appeal No. 1999-1013
Application No. 29/014,141
designs articles of this type to be mere manifestations of the
same basic design, rather than characteristically different
designs.” Id.
In the answer, the examiner has introduced a new rejection
of the appealed claim under 35 U.S.C. § 103 “as being
unpatentable over the Southco Fastener at the top right corner of
Page C-7 (note the fastener at the bottom right corner of the
picture), in view of the Molina patent.” Id. On pages 3 and
4 of the answer, the examiner expresses his conclusion of
obviousness in the following manner:
The only difference between the claimed design and the
prior art is that the claimed design has vertical knurled
ribs on the bottom shank portion.
The secondary Molina patent reference 4,975,007 is
cited for showing the conventionality of the vertical
knurled ribs on the shank portion of a captive screw. Note
feature number 35 in the drawings.
It would have been obvious to one of ordinary skill in
the art to have provided the basic Southco reference
retractable captive screw with a vertically ribbed shank or
bottom portion in view of what the Molina captive screw
shows and suggests. Moreover, the combination of references
would have resulted in an overall appearance strikingly
similar to the claimed design and no patentable ornamental
advance is seen there over [sic].
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