Appeal No. 1999-1013
Application No. 29/014,141
We refer to the brief and reply brief as well as to the
answer and supplemental answer for a complete exposition of the
respective viewpoints expressed by the appellant and by the
examiner concerning the above noted rejections.
OPINION
For the reasons which follow, we cannot sustain either of
the Section 103 rejections advanced by the examiner on this
appeal.
The patentability of a design is determined by a
consideration of the overall appearance, the visual effect as a
whole of the design. In re Rosen, 673 F.2d 388, 390, 213 USPQ
347, 349 (CCPA 1982). Where the inquiry is to be made under
35 U.S.C. § 103, the proper standard is whether the design would
have been obvious to a designer of ordinary skill who designs
articles of the type involved. In re Nalbandian, 661 F.2d 1214,
1217, 211 USPQ 782, 785 (CCPA 1981). Moreover, when a Section
103 rejection is based on a combination of references, the long
standing test for a proper combination has been whether the
references are so related that the appearance of certain
ornamental features in one would have suggested the application
of those features to the other. Rosen, 673 F.2d at 391, 213 USPQ
at 350; In re Glavas, 230 F.2d 447, 450, 109 USPQ 50, 52 (CCPA
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