Appeal No. 2003-1862
Application No. 29/153,657
The design claim stands rejected under 35 U.S.C. ' 103. As evidence of
obviousness, the examiner relies upon Herzog=s element 36 or the Valu Guide rod cross
block in Bulletin No. 153, each in view of the Valu Guide transition cap assembly on
page 30.2A.
We refer to the Brief and the Reply Brief as well as the Answer for the
respective positions of the appellant and the examiner.
OPINION
Having carefully considered the obviousness issues raised in this appeal in light
of the teachings of the applied prior art and in light of the examiner=s remarks and the
appellant=s arguments, it is our conclusion that the examiner=s rejection of the present
design claim must be reversed. Our reasoning is essentially is two-fold.
AIn determining the patentability of a design, it is the overall appearance, the
visual effect as a whole of the design, which must be taken into consideration.@ See 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. See In re Nalbandian, 661 F.2d 1214, 1217, 211 USPQ 782, 785 (CCPA
1981). Furthermore, as a starting point when a ' 103 rejection is based upon a
combination of references, there
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