Ex parte Credle

Board of Patent Appeals and Interferences

Dec 30, 1998

29052635 (B.P.A.I. Dec. 30, 1998)

Application for patent filed April 4, 1996. According1
to appellant, this application is a division of Application
29/027,425 filed August 24, 1994, now U.S. Design Patent No.
Des. 371,281 issued July 2, 1996.
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journal and (2) is not binding precedent of the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. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte WILLIAM S. CREDLE JR.
____________
Appeal No. 98-3079
Application No. 29/052,6351
____________
HEARD: December 9, 1998
____________
Before McCANDLISH, Senior Administrative Judge MEISTER and
ABRAMS, Administrative Patent Judge.
ABRAMS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 98-3079
Application No. 29/052,635
2
This is an appeal from the final rejection of the
following design claim:
The ornamental design for a building block drink
container as shown and described.
The several embodiments of this design have been depicted
in some forty views, with Figures 57 through 63 being the most
representative when evaluating the examiner’s rejection.
THE REFERENCES
The references applied by the examiner are:
Loofbourrow et al. (Loofbourrow) 4,656,840 Apr. 14,
1987
McLaughlin et al. (McLaughlin) D-301,260 May 23,
1989
Zutler D-333,978 Mar. 16,
1993
THE REJECTION
The design claim stands rejected under 35 U.S.C. § 103 as
being unpatentable over Zutler in view of Loofbourrow and
McLaughlin.
The rejection is explained in Paper No. 8, the final
rejection.
The opposing viewpoints of the appellant are set forth in
the Brief.
OPINION
Appeal No. 98-3079
Application No. 29/052,635
3
The appellant’s design is for a drink container of
rectangular shape with round protrusions on the front side and
round recesses on the rear side so that a plurality of
containers can be linked together in the nature of toy
building blocks. A wide mouth circular or oval opening is
provided on the top of the container, and a flange or ring
surrounds this opening. The round protrusions and recesses
are evenly spaced relative to one another, and are as a group
spaced slightly less from the top of the sides of the
container than from the bottom.
It is the examiner’s position that
to modify the Zutler reference by providing rear
recesses as taught by the reference to Loofbourrow
and to further substitute [for] the square shape of
Zutler for [sic] the rectangular shape of McLaughlin
would have been obvious to a designer of ordinary
skill in the art and would meet the appearance of
the claimed design (Answer, page 2).
As for the other differences pointed out by the appellant in
the Brief, the examiner replies that
[t]he differences cited by Appellant, mainly the
spacing between the protrusions, square protrusions
rather than circular and the size of the top opening
are minor when considering the overall appearance
(Answer, page 3).
Appeal No. 98-3079
Application No. 29/052,635
4
We begin our analysis by pointing out that the standard
for evaluating the patentability of a design is whether it
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). In rejecting a claim to an
ornamental design under 35 USC § 103, the examiner must supply
a basic design reference that bears a substantially identical
visual appearance to the claimed design. In re Harvey, 12
F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed Cir. 1993). That
is, there must be a reference, a something in existence, the
design characteristics of which are basically the same as the
claimed design; once a reference meets this test, reference
features may reasonable be interchanged with or added from
those in other pertinent references. In re Rosen, 673 F.2d
388, 391, 213 USPQ 347, 350 (CCPA 1982).
On page 3 of the Brief, the appellant has listed six
differences between the claimed design and that of Zutler, the
primary reference. From our perspective, at the very least,
two of these rise to the level of providing such a difference
between the claimed design and that of Zutler, even as
Appeal No. 98-3079
Application No. 29/052,635
5
modified by the two secondary references, as to cause us not
to sustain the examiner’s rejection. These are the very large
size of the opening in the top of the container as compared to
the planform of its top, as is best shown in Figure 58, and
the presence of a rim about this opening, as is best
illustrated in Figures 60-63.
The opening in the top is very prominent when the claimed
container is viewed from the top, in that its size is almost
equal to the width of the top and encompasses a substantial
portion of its length. We therefore cannot agree with the
examiner that this feature is “minor when considering the
overall appearance [of the claimed design]” (Answer, page 3).
Such a size relationship between opening and top is not
present in Zutler (see Figure 4) or, to an even greater
extent, not present in Loofbourrow (see Figure 1), and there
is no circular opening at all in the top of the container
disclosed in McLaughlin. A rim about the opening is not shown
in any of the references.
Therefore, even considering, arguendo, Zutler to be a
Rosen reference, we will not sustain this rejection on the
Appeal No. 98-3079
Application No. 29/052,635
6
grounds that the evidence of obviousness adduced by the
examiner would not have rendered the two features discussed
above obvious to the designer of ordinary skill in the
articles involved.
The rejection is not sustained.
The decision of the examiner is reversed.
Appeal No. 98-3079
Application No. 29/052,635
7
REVERSED
HARRISON E. McCANDLISH )
Senior Administrative Patent Judge
)
)
)
)
) BOARD OF PATENT
JAMES M. MEISTER ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
NEAL E. ABRAMS )
Administrative Patent Judge )
NEA/jlb
Appeal No. 98-3079
Application No. 29/052,635
8
BIRCH STEWART KOLASCH & BIRCH
P.O. Box 747
Falls Church, VA 22040-0747
JoAnne
Appeal No. 98-3079
Application No. 29/052,635
APJ ABRAMS
APJ CALVERT
APJ McCANDLISH
REVERSED
(HEARD)
Prepared: September 24, 1999
3 Members Conference
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