Appeal No. 2004-0152
Application No. 29/149,571
involved. See In re Rosen, 673 F.2d 388, 390, 213 USPQ 347, 349
(CCPA 1982).
To combine prior art designs, one must first find a single
reference, "a something in existence, the design characteristics
of which are basically the same as the claimed design." In re
Rosen, 673 F.2d at 391, 213 USPQ at 350. Once this primary
(Rosen-type) reference is found, other references may be used to
modify it to create a design that has the same overall visual
appearance as the claimed design. See In re Harvey, 12 F.3d
1061, 1063, 29 USPQ2d 1206, 1208 (Fed. Cir. 1993). These
secondary references may only be used to modify the primary
reference if they are "so related [to the primary reference] that
the appearance of certain ornamental features in one would
suggest the application of those features to the other." In re
Borden, 90 F.3d at 1575, 39 USPQ2d at 1526-27.
As can readily be discerned from viewing appellants’ drawing
figures, the claimed smoking article container design reveals, as
a visually prominent feature, the appearance of a single, large
circular transparency (window) centered within the lower, major
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