29176106 (B.P.A.I. Jun. 20, 2011)

Ex Parte Wheat

Board of Patent Appeals and InterferencesJun 20, 2011

29176106 (B.P.A.I. Jun. 20, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JAMIE L. WHEAT ____________ Appeal 2009-013647 Application 29/176,106 Technology Center 2900 ____________ Before JOHN C. KERINS, STEVEN D.A. McCARTHY, and MICHAEL W. O’NEILL, Administrative Patent Judges. O’NEILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Jamie L. Wheat (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting the ornamental design for a planting auger as shown and described in this application for a design patent under 35 U.S.C. § 103(a) as unpatentable over Johnson (US 3,356,168, iss. Dec. 5, 1967) and Niewold (US 5,067,571, iss. Nov. 26, 1991). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. App App in pa read Figu on ap illus the d coni facet on th eal 2009-0 lication 29 The clai rticular, to s: “The orn res 1, 5, an peal. Figures 1, Johnson trates the d isclosed a cal tips as ed-triangu e left, whi 13647 /176,106 med ornam the flight amental d d 6, repro 5, and 6 d and Niew isclosed a uger of Ni compared lar tip. Re le Figure 2 The ental desi s and the t esign for a duced belo epict an or P old disclos uger of Jo ewold. Bo to the clai produced of Niewo 2 Invention gn on app ip of the a planting w, are illu namental rior Art e plant au hnson. Fig th Johnso med ornam below, Fig ld is depic eal relates uger. The auger as sh strative o design for gers. Figu ure 2 of N n and Niew ental desi ure 1 of J ted on the to a planti claim on own and f the subje a planting re 1 of Joh iewold ill old auger gn which ohnson is right. ng auger; appeal described. ct matter auger. nson ustrates s have has a depicted ” App App Joh facet diffe the o stand mini appe insig 1061 eal 2009-0 lication 29 nson’s Fig The Exa ed-triangu rence. See verall app s on the o mis and is arance of A de min nificant im , 1066 (Fe 13647 /176,106 ure 1 depi miner prov lar tip of t Ans. 4-5 earance th pinion tha seen as a the design imis diffe pact on th d. Cir. 199 cts an aug DIS ides no su he claimed (“… appe at it is seen t the differ minor vari over the r rence is a e overall v 3). The q 3 er. Niewo CUSSION pport for design am arance of t as de min ences in a ation that eferences a difference isual imp uestion w ld’s Figur the finding ounts to he tip is se imis” and ppearance does not d pplied.”) so minor t ression. In hether a di e 2 depicts that the t a de minim en to be m “Examin of the tips istinguish hat it has re Harve fference is an auger. apered, is inimal to er still are de the overal an y, 12 F.3d de l Appeal 2009-013647 Application 29/176,106 4 minimis is one of fact. Id. An unsupported statement that a difference is de minimis amounts to a conclusory finding. In this appeal, the basis for the Examiner’s finding that the difference between the prior art and the claimed design would be so minor such that the differences have an insignificant impact on the overall visual impression is not clear given only the face of the prior art designs. Without some reasons explaining the Examiner’s finding of a de minimis difference with respect to the visual impression of the tip, we cannot sustain the Examiner’s rejection in this appeal. DECISION Based on the foregoing, we are constrained to reverse the Examiner’s decision to reject the claimed ornamental design as obvious. REVERSED Klh