Ex parte Meyer

Board of Patent Appeals and Interferences

Feb 3, 2000

29079653 (B.P.A.I. Feb. 3, 2000)

Application for patent filed November 21, 1997. 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for publication in a law journal and (2) is not binding precedent of the Board.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 DEBBIE JEAN MEYER
____________
Appeal No. 2000-0553
Application No. 29/079,6531
____________
ON BRIEF
____________
Before HAIRSTON, NASE, and KRATZ, Administrative Patent
Judges.
HAIRSTON, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of the
following design claim:
The ornamental design for a cake cutting knife as
shown and described.
Appeal No. 2000-0553
Application No. 29/079,653
2
As seen in Figures 1 through 7, the uncurved top surfaces
of the blades are flush with the top surfaces of the handle
portions of the cake cutter, and the lower surfaces of the
handle portions are in a near right-angle relationship with
vertically extending portions of the blades. The cutting edge
of the blades is straight, and this straight edge forms a
rounded right angle with the vertically extending portions of
the blades. The cutting edges of the blades are also in a
parallel relationship with the top surfaces of the handle
portions and the uncurved top surfaces of the blades. The top
surfaces of the blades slope downwardly and meet at a V-shaped
junction. The height of this V-shaped junction is less than
the height of the two vertically extending portions of the
blades.
The references relied on by the examiner are:
Haugland 2,600,646 June 17,
1952
Harvey D159,729 Aug. 15, 1950
The design claim on appeal stands rejected under 35
U.S.C.
§ 103 as obvious. As evidence of obviousness, the examiner
relies on Haugland because it “is similar to applicant’s
Appeal No. 2000-0553
Application No. 29/079,653
3
[design] in overall appearance except for the handle, the
blade being straight off the handle and a non-serrated blade,”
and Harvey because he shows “a handle and the blade being
straight of [sic, off] the handle and a non-serrated blade
similar to the claimed design” (paper number 5, page 2). The
examiner states (paper number 5, page 2) that:
It would have been obvious to one of ordinary
skill in the art at the time the invention was made
to modify the reference to Haugland by substituting
the handle, showing the blade straight off the
handle and providing a non-serrated blade as taught
by the reference to Harvey. The resulting article
being strikingly similar to the claimed design. The
claimed article fails to provide an appearance over
the references to warrant patentability.
Appellant has listed a plurality of differences between
the disclosed and claimed cake cutting knife design and the
cake slicer disclosed by Haugland (Brief, pages 5 through 7).
Appellant then argues (Brief, page 7) that “even though they
are functionally similar, the article of the present invention
is significantly different from the article of Haugland in
overall ornamental appearance.” With respect to the combined
teachings of Haugland and Harvey, appellant argues (Brief,
page 8) that “the Examiner has not pointed out any teaching or
even remote suggestion in Harvey that the teachings thereof
Appeal No. 2000-0553
Application No. 29/079,653
In re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA2
1982).
4
would be applicable to a cake cutter device of the type to
which the present invention (and Haugland) pertains.” “That
is, even though Harvey discloses a non-serrated blade and that
the blade comes straight off the handle, these features are
notoriously well known in the general knife art and there is
still no teaching or suggestion in Harvey to apply these
features to the cake slicer of Haugland to achieve the overall
visual appearance and ornamental effect of the claimed present
invention” (Brief, page 8).
In response to appellant’s arguments, the examiner argues
that Haugland is a proper Rosen reference because it has “the2
same ‘design characteristics’ as the claimed design” (Answer,
page 3), that “[w]hile there may appear to be a ‘multitude of
differences’ it is still believed that the overall appearance
of the claimed design is met by the prior art” (Answer, page
3), that “Harvey is believed to be a proper secondary
reference as a knife is in the same U.S. class as a cake
slicer/cutter, hence an analogous art and well within the
knowledge of a designer with ordinary skill in the art”
Appeal No. 2000-0553
Application No. 29/079,653
5
(Answer, pages 3 and 4), and that “the applied references are
so related that the appearance of features shown in one would
suggest the application of those features to the other”
(Answer, page 4).
Reference is made to the brief and the answer for further
detailed positions of the appellant and the examiner.
OPINION
We have carefully considered the entire record before us,
and we will reverse the obviousness rejection.
Appellant’s arguments to the contrary notwithstanding, we
agree with the examiner that Haugland is a proper Rosen
reference, and that the cake cutter of Haugland and the knife
of Harvey are “so related that the appearance of certain
ornamental features in one . . . would have suggested
application of those features to another.” In re Cho, 813
F.2d 378, 382, 1 USPQ2d 1662, 1663 (Fed. Cir. 1987). For
example, Harvey would have suggested a blade straight off the
handle and a non-serrated blade to Haugland.
With respect to the other differences between the
modified Haugland design and the disclosed and claimed design,
Appeal No. 2000-0553
Application No. 29/079,653
6
we do not agree with the examiner that “these differences seem
to be de minimis when taken as a whole” (Final Rejection, page
2). For example, the curved upwardly extending portions of
the blades that join the lower portions of the handles in the
modified Haugland cake slicer are very different from the
substantially straight portions in the disclosed and claimed
design. According to the appellant, “Haugland makes it appear
that the handle is attached to an extension of the blade
rather than directly to the blade as in the present invention”
(Brief, page 6). We agree. Even with the blades straight off
the handles, “the handles of the Haugland cake slicer curve
outwardly” whereas the handles of the disclosed and claimed
design are straight (Brief, pages 6 and 7).
In summary, the overall ornamental appearance of the
claimed design is not suggested by Haugland and Harvey.
Appeal No. 2000-0553
Application No. 29/079,653
7
DECISION
The decision of the examiner rejecting the design claim
under 35 U.S.C. § 103 is reversed.
REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
Appeal No. 2000-0553
Application No. 29/079,653
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)
)
)
PETER F. KRATZ )
Administrative Patent Judge )
lp
Appeal No. 2000-0553
Application No. 29/079,653
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FRISHAUF HOLTZ GOODMAN
LANGER & CHICK
25TH FLOOR
767 THIRD AVENUE
NEW YORK NY 10017
Leticia
Appeal No. 2000-0553
Application No. 29/079,653
APJ HAIRSTON
APJ NASE
APJ KRATZ
DECISION: REVERSED
Send Reference(s): Yes No
or Translation (s)
Panel Change: Yes No
Index Sheet-2901 Rejection(s):
Prepared: July 24, 2000
Draft Final
3 MEM. CONF. Y N
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