Ex parte Sayers

Board of Patent Appeals and Interferences

Jul 17, 2000

29069936 (B.P.A.I. Jul. 17, 2000)

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not binding precedent of the Board.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. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte RICHARD C. SAYERS
_____________
Appeal No. 2000-0244
Application No. 29/069,936
______________
ON BRIEF
_______________
Before KIMLIN, HAIRSTON, and GONZALES, Administrative Patent
Judges.
GONZALES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of the
following
design claim:
The ornamental design for a liquid dispenser as
shown and described.
We REVERSE.
Several modified forms of the claimed liquid dispenser
Appeal No. 2000-0244
Application No. 29/069,936
2
design are depicted in Figures 1 through 25 of the appellant’s
drawings, with Figures 14 through 19 being representative.
The references applied by the examiner are:
Guillerm Des. 314,688 Feb. 19,
1991
Eke et al. (Eke) Des. 356,494 Mar. 21,
1995
Grothoff 5,615,806 Apr. 01,
1997
The design claim stands rejected under 35 U.S.C. § 103 as
being unpatentable over Guillerm in view of Grothoff and Eke.
The full text of the examiner's rejection and responses
to the arguments presented by the appellant appears in the
answer (Paper No. 10), while the complete statement of the
appellant’s arguments can be found in the main and reply
briefs (Paper Nos.
9 and 11 respectively).
OPINION
We begin our analysis by pointing out that the standard
for evaluating the patentability of a design is whether it
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Application No. 29/069,936
3
would have
been obvious to a designer of ordinary skill in the art
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 U.S.C. § 103, the examiner must supply a
primary or basic 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 reasonably be interchanged with
or added to those in other pertinent references. In re Rosen,
673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).
The examiner concluded that Guillerm constitutes a
sufficient “Rosen” reference. The appellant argues that
Guillerm does not. We need not consider this issue, however,
because even assuming that Guillerm is a sufficient "Rosen"
reference which discloses essentially the same basic design as
that of the appellant, we reject the examiner’s position that
an ordinary designer would have been motivated to provide an
Appeal No. 2000-0244
Application No. 29/069,936
See the Office action mailed April 24, 1998, page 3 (Paper No. 3)1
See the reply brief filed July 23, 1999, page 2 (Paper No. 11).2
4
outlet spout as claimed on the actuator disclosed by Guillerm
in view of the teachings of Grothoff and Eke.
To begin with, we note that the claimed liquid dispenser
design comprises three main sections, namely: an upper
cylindrical actuator portion with an integrally formed outlet
spout; a middle, slightly larger, cylindrical housing or
collar portion for attachment to a liquid container; and a
lower pump element for insertion into the container. The
examiner cites the Eke reference for its teaching of a
container with a pump
dispensing closure whose middle housing or collar portion
flares slightly outward as it meets the container. Since the1
appellant explicitly states that no distinctiveness is claimed
in either the collar portion or the pump element, we will2
focus our attention, as has the appellant, on the ornamental
aspects of the claimed actuator portion design relative to the
proposed combination of Guillerm and Grothoff, keeping in mind
Appeal No. 2000-0244
Application No. 29/069,936
5
that it is the overall appearance of the design that must be
considered in determining patentability under 35 U.S.C. §
103(a). In re Leslie, 547 F.2d 116, 120, 192 USPQ 427, 429
(CCPA 1977).
The appellant’s design is for a liquid dispenser having,
inter alia, an actuator portion with an outlet spout formed as
an extension of the actuator sidewall. The ornamental design
of the actuator creates the visual appearance of vertical
sidewalls having an upper, rounded edge merging into a flat,
horizontal top surface and an angulated outlet spout with
curved sidewalls terminating in an angulated end face.
The examiner determined that Guillerm discloses a pump
dispensing closure of substantially the same appearance as the
claimed design including “an integrally formed triangular
dispensing outlet.” See answer, p. 3. The examiner also
determined that Grothoff teaches a narrower dispensing spout
having a slight downward angle and concave sidewalls. Id. It
is the examiner’s position (id. at 4) that, in view of
Grothoff, it would have been obvious
to modify the dispensing closure of Guillerm by
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Application No. 29/069,936
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modifying its integrally formed, slightly protruding
dispensing spout to become narrower and angled
downward, and to show a slight inward curvature
(concavity) to the side walls.
The appellant points out that the top of Guillerm’s
actuator includes a planar extension of the upper surface of
the actuator which forms a roof or ledge covering a
horizontal, rectangular spout. See main brief, p. 6. The
appellant also emphasizes that the top surface of Grothoff’s
actuator is entirely convex, as opposed to the essentially
flat top surface of the actuator of the claimed design and
that the free end of the outlet spout in Grothoff is
perpendicular to the longitudinal dimension of the spout. Id.
at 7 and 8. Thus, the appellant argues that even if it had
been obvious to modify the design of Guillerm in view of
Grothoff, one would not have arrived at the appellant’s
claimed actuator design. Id. at 8 and reply brief, p. 4. We
agree.
The Grothoff reference shows a liquid dispenser actuator
portion having a convex top surface. The outlet spout is
curved on an arc continuous with the top surface, rather than
Appeal No. 2000-0244
Application No. 29/069,936
7
being at an angle to a flat top as claimed. The appellant is
also correct in pointing out that the free end of the outlet
spout in Grothoff is perpendicular to the longitudinal
dimension of the spout, not angulated as claimed. Thus, it is
our determination that the claimed design would not have been
suggested by the combined teachings of Guillerm and Grothoff,
neither of which teaches or suggests a liquid dispenser
actuator portion having a flat top with an angulated spout or
a free end of the spout being angulated to the longitudinal
axis of the spout.
As indicated supra, Eke was cited for its teaching of a
container with a pump dispensing closure whose middle housing
or collar portion flares slightly outward as it meets the
container, not for the design of the actuator portion.
Nevertheless, we have carefully reviewed the Eke patent, but
find nothing therein that makes up for the deficiencies of
Guillerm and Grothoff noted above. It therefore is our
conclusion that the combined teachings of Guillerm, Grothoff
and Eke fail to establish a prima facie case of obviousness
with regard to the claimed subject matter.
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Since the applied prior art fails to teach or suggest the
aesthetic features of the claimed design, we will not sustain
the standing 35 U.S.C. § 103 rejection based on Guillerm,
Grothoff and Eke.
The decision of the examiner is reversed.
REVERSED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
KENNETH W. HAIRSTON ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
vsh
Appeal No. 2000-0244
Application No. 29/069,936
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H.G. Bruss
Owens Illinois
One Seagate 25 LDP
Toledo, OH 43666