Ex Parte D498187 et al

Board of Patent Appeals and Interferences

Jun 3, 2010

90007640 (B.P.A.I. Jun. 3, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte FORD GLOBAL TECHNOLOGIES, LLC.1

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Appeal 2010-004965
Reexamination Control 90/007,640
Patent US D498,187 S2
Technology Center 2900
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Decided: June 3, 2010

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Before ROMULO H. DELMENDO, JEFFREY B. ROBERTSON and
DANIEL S. SONG, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 Ford Global Technologies, LLC. is the Patent Owner and real party in
interest (App. Br. 1).
2 Issued November 9, 2004 to Platto et al.
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STATEMENT OF THE CASE
The Patent Owner (hereinafter "Appellant") appeals under 35 U.S.C.
§§ 134 and 306 (2002) from a Final Rejection of the sole claim of the
D498,187 S patent (hereinafter '187). We have jurisdiction under 35 U.S.C.
§§ 134 and 306 (2002).
The Patentee claims an ornamental design for a vehicle front grill,
Figures 1-3 of the '187 patent being reproduced below:

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Figures 1, 2 and 3 of the '187 patent reproduced above show a
perspective view, front view, and side view, respectively, of the claimed
design for a vehicle front grill. The claimed design includes an appearance
of a shape generally resembling a trapezoid with the transition between the
bottom edge and the angled side edges being rounded. The claimed design
is defined by a lattice structure having a rows/columns grid pattern which
forms an array of rectangular openings over most of the grill. The claimed
design depicts an appearance of a grill that is raked at an angle with the
bottom edge protruding forward relative to the top edge.
The evidence relied upon by the Examiner in rejecting the claims is:
Tanaka D479,166 S Sep. 2, 2003
Homan D475,330 S Jun. 3, 2003
Trailer Life: 2003 Expedition Sports Styling Changes, Oct. 2001, pg.
23 (October 2001) (hereinafter "Trailer Life").
Road & Track: Introducing the All-New Ford Explorer 02, pg. 17
(July 2001) (hereinafter "Road & Track").

The Examiner rejected the sole design claim under 35 U.S.C. § 103(a)
as unpatentable over Trailer Life in view of Road & Track, Tanaka and
Homan.
We AFFIRM.
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ISSUES
1. Whether the photograph in Trailer Life shows a vehicle front
grill design that has the design characteristics that are basically the same as
the claimed design based on the preponderance of the evidence.
2. Whether the Examiner erred in concluding that the claimed
vehicle front grill design would have been obvious over Trailer Life in view
of Road & Track, Tanaka and Homan.

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Trailer Life includes a photograph of a 2003 Ford Expedition
showing a partially covered vehicle front grill. The photograph of Trailer
Life is reproduced below3:

3 This reproduced photograph is a scanned image of a color copy of the
original Trailer Life publication, the color copy being of record in the
Artifacts file associated with the present application.
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The above photograph shows a 2003 Ford Expedition with a partially
covered vehicle front grill.
2. Road & Track includes a photograph of a 2002 Ford Explorer
showing a perspective view of its front grill. A portion of the photograph of
Road & Track is reproduced below:

The above reproduced portion of the photograph from Road & Track
shows a 2002 Ford Explorer with a front grill (Road & Track photograph).

3. Tanaka describes an ornamental design for a vehicle front grill,
Figures 1 and 6 of Tanaka being reproduced below:
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Figure 1 of Tanaka illustrates a perspective view of the described
vehicle front grill while Figure 6 shows a right side view thereof (Tanaka
Description; Figs. 1 and 6).

4. Homan describes an ornamental design for an automobile grill,
Figure 2 of Homan being reproduced below:

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Figure 1 of Homan illustrates a front view of the described automobile
grill (Homan Description; Fig. 2).

PRINCIPLES OF LAW
In reviewing the evidence on appeal, we apply the "preponderance of
the evidence" standard. See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office). "[A] preponderance of the evidence …
standard … only requires the fact finder 'to believe that the existence of a
fact is more probable than its nonexistence before [he] may find in favor of
the party who has the burden to persuade the [judge] of the fact's existence.'"
Bosies v. Benedict, 27 F.3d 539, 542 (Fed. Cir. 1994) (citing In re Winship,
397 U.S. 358, 371-72 (1970)).
"In determining the patentability of a design, it is the overall
appearance, the visual effect as a whole of the design, which must be taken
into consideration." See In re Rosen, 673 F.2d 388, 390 (CCPA 1982); see
also In re Lamb, 286 F.2d 610, 611-12 (CCPA 1961). Where the inquiry is
to be made under 35 U.S.C. § 103, the proper analysis requires
determination as to whether the design would have been obvious to a
designer of ordinary skill who designs articles of the type involved. See In
re Nalbandian, 661 F.2d 1214, 1217 (CCPA 1981).
[T]he mere fact that there are differences over the prior art
structures is not alone sufficient to justify a holding that the
design is patentable. In comparing the design of the application
with that of the reference it is apparent that there are some
minor differences, but clearly not such a variation as to create
the impression of a new or different design. The overall
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appearance is the same, as appears to have been intended, even
though the instant design is somewhat slimmer than the
reference. The fact that some dimensions are changed in a
different degree than others is not patentably significant.

In re Lamb, 286 F.2d at 611-12; see also In re Carter, 673 F.2d 1378, 1380
(CCPA 1982) ("The elimination of the end portions of the waistband and of
any cinching of the waist portion these ends might cause are de minimis
changes which would be well within the skill of an ordinary designer in the
art and do not create a patentably distinct design.").
As a starting point for a § 103 rejection, "there must be a reference, a
something in existence, the design characteristics of which are basically the
same as the claimed design in order to support a holding of obviousness.
Such a reference is necessary whether the holding is based on the basic
reference alone or on the basic reference in view of modifications suggested
by secondary references." In re Rosen, 673 F.2d at 391. "Once this primary
reference is found, other references may be used to modify it to create a
design that has the same overall visual appearance as the claimed design."
Durling v. Spectrum, 101 F.3d 100, 103 (Fed Cir. 1996). "[T]he teachings
of prior art designs may be combined only when the designs are 'so related
that the appearance of certain ornamental features in one would suggest the
application of those features to the other.'" In re Borden, 90 F.3d 1570, 1575
(Fed Cir. 1996) (citing In re Glavas, 230 F.2d 447, 450 (CCPA 1956).

ANALYSIS
The Examiner rejects the sole design claim under 35 U.S.C. § 103(a)
as unpatentable over the combination of Trailer Life in view of Road &
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Track, Tanaka and Homan (Ans. 3). The Examiner finds that Trailer Life
shows a vehicle front grill with "the design characteristics, which has
basically the same overall appearance" as that of the '187 patent, except that
a small portion of the grill is hidden, and does not show the outwardly
bowed convex shape or the flush upper-lattice band (FF 1; Ans. 3). The
Examiner asserts that providing a continuous lattice pattern in a vehicle front
grill is well known as evidenced by Road & Track (FF 2) and concludes that
it would have been obvious to a designer of ordinary skill in the art to have
designed the vehicle front grill of Trailer Life to have a convex shape as
shown by Tanaka (FF 3) and to include a flush upper-lattice band as shown
in Homan (FF 4) (Ans. 3-4). We agree with the Examiner and discuss the
Appellant's arguments infra in an order slightly different than the order
presented.
The Appellant argues that the Examiner erred in finding that the
design shown in the photograph of Trailer Life is basically the same as the
claimed design "considering that the reference is a poorly lit spy photo
showing only a front view of a grill." (App. Br. 7). However, we observe
that whereas the photograph reproduced in the Appellant's Brief (App. Br. 4)
is very poor in quality, the color copy (and thus, the original) of Trailer Life
in the record is actually of high quality (See FF 1). In addition, contrary to
the Appellant's assertion, the photograph of Trailer Life is taken at an angle
thereby providing a three-dimensional perspective view of the vehicle and
the front grill (FF 1). While it is true that Trailer Life does not include side
and top views (App. Br. 6), we do not find the lack of such views to be
dispositive because the perspective view of the vehicle and its front grill
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sufficiently illustrates the design characteristics of the vehicle grill so that its
overall appearance and the visual effect as a whole can be readily
ascertained. See In re Rosen, 673 F.2d at 390-91.
Based on our review, we agree with the Examiner that Trailer Life
shows a vehicle front grill design having a general shape resembling a
trapezoid with the transition between the bottom edge and the angled side
edges being rounded (FF 1). The vehicle front grill design in Trailer Life is
also defined by a lattice with a rows/columns grid pattern which forms an
array of rectangular openings over most of the grill (FF 1). Trailer Life also
shows to the satisfaction of the "preponderance of evidence" standard that
the vehicle front grill is raked at an angle with the bottom edge protruding
forward relative to the top edge (FF 1). Hence, the design shown in Trailer
Life, although not identical to the claimed design, has characteristics such
that its overall appearance and the visual effect as a whole are the same as
those imparted by the claimed invention. Thus, the vehicle front grill design
of Trailer Life is "a something in existence, the design characteristics of
which are basically the same as the claimed design." See In re Rosen, 673
F.2d at 391.
The Appellant argues that Trailer Life fails to teach or suggest the
"rake angle" of the claimed design, that "one must look to the secondary
references to fill the missing blanks[,]" and that the rake angles shown in
Road & Track and Tanaka are substantially different, whereas Homan does
not exhibit a rake angle at all (App. Br. 7-8). However, we disagree with the
Appellant's initial contention that Trailer Life does not illustrate a "rake
angle."
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As noted above, careful examination of the photograph of Trailer Life
showing an angled perspective view of the vehicle front grill reveals the
contrary (FF 1). In particular, we observe that Trailer Life shows the vehicle
front grill installed on a vehicle, thereby providing additional perspective to
the grill and its angling. For example, we note the angularity of the portion
of the fascia extending upwardly from the bumper portion near the vehicle's
right headlight housing, and the obstructed view of the same with respect to
the vehicle's left headlight housing. We further observe that the bottom edge
of the grill extends well below the lower edge of the headlights and appears
to be substantially flush with the bumper portion of the fascia under the
bottom edge of the grill (from which the angled portion of the fascia
upwardly extends near the right headlight housing). Such features shown in
the photograph of Trailer Life gives the appearance that the grill is angled so
that the lower portion of the grill protrudes forwardly as compared to the
upper portion of the grill, thereby satisfying the "preponderance of the
evidence" standard. See Bosies v. Benedict, 27 F.3d at 541-42 (the
preponderance of the evidence standard requires the finder of fact to believe
that the existence of a fact is more probable than its nonexistence).
Furthermore, notwithstanding the fact that incorporating a rake angle
to a vehicle's front grill design is well known in the art (FF 3; App. Br. 5), to
the extent that there is any deficiency in Trailer Life in disclosing the actual
degree of the rake angle, we agree with the Examiner that minor differences
in the amount of the rake angle would be a de minimis and does not impact
the overall appearance of the claimed design over the applied combination of
references (Ans. 6). See In re Lamb, 286 F.2d at 611-612; see also In re
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Carter, 673 F.2d at 1380. Of course, if the rake angle in the claimed design
was extreme, such an extreme rake angle may impact the overall appearance
of the claimed design. However, such is not the case in the claimed design.
The Appellant further contends that "Trailer Life fails to adequately
disclose the 'flush lattice-upper band' feature claimed in the '187 patent[,]"
the upper band corresponding to the upper-most horizontal portion of the
lattice (App. Br. 4). However, we agree with the Examiner that such a
difference is minor and does not sufficiently distinguish the claimed design
from the prior art (Ans. 6). In this regard, the 'flush lattice-upper band'
feature is de minimis and does not impact the overall appearance of the
claimed design to a degree so as to require explicit illustration thereof in the
Rosen-type reference. See Durling, 101 F.3d at 103; In re Lamb, 286 F.2d at
611-12; In re Carter, 673 F.2d at 1380. The upper band of the claimed
design is merely the upper terminating edge of the lattice, the upper band
being implemented in the same manner as all of the other laterally extending
grid members (rows) of the lattice structure and its edges so that there is no
special attention drawn to the upper band. If the upper band of the
Appellant's claimed design incorporated a characteristic that deviated
significantly from the rest of the lattice and its other edges that forms the
grill (e.g., raised lattice as shown in Road & Track or recessed lattice as
shown in Tanaka), such a feature may impact the overall appearance of the
claimed design to a degree so as to require explicit illustration thereof in the
Rosen-type reference. However, such is not the case with respect to the
claimed design.
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The Appellant also argues that neither Road & Track nor Tanaka cure
the lack of a flush lattice-upper band design in Trailer life because Road &
Track shows a raised lattice while Tanaka shows a recessed lattice (App. Br.
4-6). However, this argument is not particularly persuasive because the
Examiner's rejection relies on Homan for disclosing a flush upper-lattice
band, not Road & Track or Tanaka (FF 4; Ans. 4-5). We find that the
designs in Homan and Trailer Life, although not identical to each other, are
sufficiently related that the appearance of certain ornamental features in one
design would have suggested the application of those features in the other
design. Specifically, Homan shows that providing a flush lattice-upper band
design in a vehicle front grill sufficiently similar to that shown in Trailer
Life is well known in the design of vehicle front grills (FF 4; Ans. 5).
Indeed, the Appellant does not dispute that Homan illustrates the flush
lattice-upper band in a vehicle front grill, or set forth detailed arguments as
to why it would not have been obvious to a designer of ordinary skill to
provide such a design characteristic. Thus, in view of the above, we agree
with the Examiner that it would have been obvious to a designer of ordinary
skill in the art to terminate edge of the lattice shown in the vehicle front grill
of Trailer Life in the manner shown in Homan so that the upper-lattice band
provides a flush appearance, especially considering that the design of the
upper band would merely be implemented in the same or similar manner as
all of the other laterally extending grid members (rows) of the lattice
structure and its other edges (sides and bottom).
Moreover, to the extent that the Appellant is relying on the curvature
of the claimed grill (App. Br. 8), we observe that the curvature of the
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claimed grill is very gradual (very large radius of curvature) so that it does
not impact the overall appearance of the claimed design to a degree so as to
require explicit illustration thereof in the Rosen-type reference. As such, the
Examiner's reliance on Tanaka for illustrating such a feature is not improper.
The designs in Tanaka and Trailer Life, although not identical, are
sufficiently related that the appearance of certain ornamental features in one
design would have suggested the application of those features in the other
design. Tanaka shows that providing a curvature design in a vehicle front
grill sufficiently similar to that shown in Trailer Life is well known in the
design of vehicle front grills (FF 3). The fact that Tanaka also incorporates
"a negative slope at its lower edge" does not diminish the curved grill design
characteristic for which the Examiner relies on Tanaka, or establish
impropriety of the Examiner's application thereof to conclude that providing
a curvature to the grill of Trailer Life would have been obvious to a designer
of ordinary skill in the art.
The Appellant's final argument that the suggested combination of the
prior art still fails to disclose the claimed design (App. Br. 8-10) is without
merit, the general overall appearance of the claimed design being shown in
Trailer Life which can be modified in accordance with secondary references
Road & Track and Tanaka to create the design claimed. Durling, 101 F.3d
at 103.

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CONCLUSIONS
1. Trailer Life shows a vehicle front grill design that has the
design characteristics that are basically the same as the claimed design based
on the preponderance of the evidence.
2. The Examiner did not err in concluding that the claimed vehicle
front grill design would have been obvious over Trailer Life in view of Road
& Track, Tanaka and Homan.

ORDER
The Examiner's rejection of the sole design claim is AFFIRMED.

Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED
ack

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