Appeal No. 2004-2299
Application No. 09/244,006
The evidence relied upon by the examiner to support a prima
facie case of obviousness is that Goodman suggests “that the
decorative applique may have alphabetic characters of alphabetic
design” and “that the applique may be formed in the form of three-
dimensional having different design[s] including a monogram or a
name” (Supplemental Answer, page 8, citing Goodman, col. 1, ll. 22-
26, and col. 2, ll. 48-60). It is the examiner’s “position” that
the reference clearly suggests the applique may be of different
designs or shapes and thus there is sufficient motivation to one of
ordinary skill in the art to employ the applique of Goodman in “any
desired design or character” (Supplemental Answer, page 8). The
examiner finds that it is within the “judgment of the skilled
artisan” to fabricate a three-dimensional decorative applique in
any shape or design because it has “no effect on the function of
the item.” Supplemental Answer, page 4.
More specifically, the examiner relies on the teaching at col.
1, ll. 22-26, of Goodman:
Pursuant to one form of construction exemplifying the
invention, articles to be decorated can be available for sale
4(...continued)
Des. 88,420; Des. 88,553; Des. 155,668; and Des. 229,904. Since
the examiner has not relied on such prior art, it cannot be
considered in assessing the above noted conclusion of
obviousness.
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