Appeal No. 2004-0401
Application 29/160,956
page 6). Appellants further describe the overall visual appearance of the “glider chair” of
Pomeroy ‘559 as “a clean, seat-dominated image,” and that of the “loveseat-type glider” of
Pomeroy ‘340 as having “a sturdy appearance . . . dominated by the seat” (id.). Appellants
describe the overall visual appearance of the claimed design as “a chair that is sturdy where the
arm supports dominate” (id.). In the answer, the examiner agrees that “the glider of [Pomeroy
‘559] . . . does not have the same broken loop armrest as in the present design,” but maintains
that when modified with Pomeroy ‘340, “the result would be a chair with a sturdy look wherein
the arm supports dominate the image as in the claimed design” (answer, pages 3-4).
We find that each “upside-down U shape” arm support of Pomeroy ‘559 visually interacts
with the single chair in two places: a point on the forward end of the seat; and a point on the
lower end of the back. We further find that each “near-loop” arm rest of Pomeroy ‘340 visually
interacts with the loveseat chair in three places: a point on the forward end of the seat; a point at
the middle of the back; and at a length on the lower end of the back. We determine that the
visual overall appearance to which the arm supports contribute in each instance supports
appellants’ position that the overall visual appearance of the “loveseat-type glider” of Pomeroy
‘340 has “a sturdy appearance” vis-à-vis “a clean . . . image” of Pomeroy ‘559 in the “seat
dominated” glider chair designs in these references..
On this record, we are of the opinion that the examiner’s finding that it is necessary to
entirely replace the “upside-down U shape” arm support of Pomeroy ‘559 with the “near-loop”
arm rest of Pomeroy ‘340 in order to create the same overall visual appearance of the claimed
chair glider design, constitutes evidence of a major modification of the “basic design” of
Pomeroy ‘559 that destroys the fundamental characteristics of that design. In other words, even
upon casual observation, the arm support shown in the claimed design of Pomeroy ‘559 is an
integral characteristic of the overall visual appearance of that glider chair design as a whole
which would materially change in a fundamental way if the arm support is replaced with that of
Pomeroy ‘340 as the examiner proposes.
Thus, we find that Pomeroy ‘559 does not provide “a basic design” necessary to establish
a prima facie case of obviousness, and accordingly, we reverse the ground of rejection.
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