Ex parte Anthony L. Schrank, et al.

Board of Patent Appeals and Interferences

Aug 28, 1997

29025638 (B.P.A.I. Aug. 28, 1997)

Application for patent filed July 7, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is not
binding precedent of the Board.
Paper No. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte ANTHONY L. SCHRANK
and WALTER L. BOHL, JR.

_____________
Appeal No. 96-3210
Application 29/025,6381
______________
ON BRIEF
_______________
Before ABRAMS, GARRIS and FLEMING, Administrative Patent Judges.
ABRAMS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of the following
design claim:
Appeal No. 96-3210
Application 29/025,638
2
The ornamental design for a KITCHEN RANGE HOOD as shown
and described.
The invention is depicted in the drawings in nine views.
As evidence of the obviousness of the appellants' design the
examiner has cited the following references:
Weaver et al. (Weaver) 2,836,114 May 27, 1958
Winton 3,125,869 Mar. 24, 1964
The claim stands rejected under 35 U.S.C. § 103 as being
unpatentable over Weaver in view of Winton.
The rejection is explained in the Examiner's Answer.
The opposing viewpoints of the appellants are expressed in
the Brief on Appeal.
OPINION
Our reviewing court has provided the following guidance for
deciding the issue of the obviousness of a design claim in view
of prior art references:
In rejections of design claims predicated upon 35 U.S.C.
§ 103, the proper standard is whether a design would have been
obvious to a designer of ordinary skill in the articles involved.
See In re Nalbandian, 661 F.2d 1214, 1216, 211 USPQ 782, 784
(CCPA 1981). To support a holding of obviousness there must be a
reference, a something in existence, the design characteristics
Appeal No. 96-3210
Application 29/025,638
3
of which are basically the same as the claimed design. Once a
reference meets the test of a basic design, reference features
may reasonably be interchanged with or added from those in other
pertinent references. See In re Rosen, 673 F.2d 388, 391, 213
USPQ 347, 350 (CCPA 1982). A proper obviousness rejection based
upon a combination of references requires that the visual
ornamental design features of the claimed design appear in the
prior art in a manner which suggests the application of them as
used in the claimed design. See In re Cho, 813 F.2d 378, 382, 1
USPQ2d 1662, 1663 (Fed. Cir. 1987); In re Glavas, 230 F.2d 447,
450, 109 USPQ 50, 52 (CCPA 1956). It is distinctiveness in
overall appearance of an object when compared with the prior art,
rather than minute details or small variations in configuration,
that constitutes the test of design patentability. See In re
Lapworth, 451 F.2d 1094, 1096, 172 USPQ 129, 131 (CCPA 1971).
The claimed design has inwardly tapered side panels which
meet the downwardly tapered top panel and front panel at rounded
edges and corners. In the Weaver design, the side panels do not
taper inwardly, and all of the joints are sharp edges. Winston
discloses inwardly tapered curved side panels 38, which mate at a
sharp edge 47 with a downwardly curved top panel 29. As stated
Appeal No. 96-3210
Application 29/025,638
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in the final rejection (Paper No. 5, page 2), it is the
examiner's position that
[i]t would have been obvious to one of ordinary skill
in the art . . . to modify the kitchen hood, 21, of
Weaver et al. so as to have sides that angle inward as
they go toward the front and so as to have a rounded
top front edge as taught by Winton. Said modification
would meet the appearance of the claimed design.
In justifying this position in the Answer the examiner has added
that the design shown in Weaver is "strikingly similar to the
claimed design" (page 3), and if any differences remain after the
teachings of the two references are combined, they are "seen to
be minor and do not render the claimed design unobvious" (page
4).
The appellants argue first that Weaver does not constitute a
Rosen reference and, second, that even if it does, the combined
teachings of the two references still fail to render the claimed
design obvious. The differences to which the appellants point
are the rounded edges and corners, and they urge that since these
are not shown in the references, the overall appearance of the
claimed design cannot be suggested thereby.
We share the appellants' belief that even assuming,
arguendo, that Weaver constitutes a Rosen reference, the two
references fail to establish a prima facie case of obviousness
Appeal No. 96-3210
Application 29/025,638
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with regard to the claimed design. The reasons we have reached
this conclusion coincide, in essence, with those set forth by the
appellants on pages 5 through 8 of the Brief. In particular, it
is our opinion that the mere fact that some curves and a rounded
corner are present in the Winston hood would not, in our view,
have suggested to a designer of ordinary skill in the articles
involved that the basic design of Weaver be altered in the manner
proposed by the examiner.
This being the case, we will not sustain the rejection, and
the decision of the examiner is reversed.
REVERSED
)
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
BRADLEY R. GARRIS )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
MICHAEL R. FLEMING )
Administrative Patent Judge )
Appeal No. 96-3210
Application 29/025,638
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