Appeal No. 2004-1452
Application No. 29/138,830
enlarged in Exhibit B, or as highlighted and marked as in Exhibit
C), the curved profile of the protrusion numbered as “6" (see
Exhibit D) and the edge profiles of each flange outward from the
lines forming the basic cylinder of the duct tap, increasing in
protuberance from top to bottom. We also agree with declarant’s
statement concerning the lines of various steps and step surfaces
(Wagner Declaration, ¶¶ 13-17). We agree that it would have been
reasonable to the ordinary designer to consider that the two
lines of the first step (numbered “11" as found in Exhibits C and
D) do not go outward from the lines of the basic cylinder of the
duct tap and thus could not be any protruding design such as a
flange. Similarly, we agree with the declarant’s explanation of
the appearance of the corresponding lines of the second and third
steps (see the Wagner Declaration, ¶¶ 15-17 and Exhibits C and
D).
We also agree with the declarant that the saddle portions
(numbered as “9, 10, 15, 17 and 18" in Exhibit D) would have been
readily apparent to the designer of ordinary skill in this art
from the perspective views originally presented in Figures 1-2
(Wagner Declaration, ¶¶ 25-26). The examiner’s allegation that
the original lack of surface shading “allows for the possibility
that the exterior sides of the saddle ... could have a compound
7
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