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Intellectual Property, Commerce, & Technology

BPAI

Board of Patent Appeals and Interferences

Patent and Trademark Office (P.T.O.)

*1 EX PARTE MORRIS SUSSMAN

Appeal No. 87-0417

April 21, 1988

Application for Patent filed March 21, 1984, Serial No. 591,991. Serving Tray.

Michael Ebert et al. for appellant.

Primary Examiner--Winifred E. Herrmann.

Before Stahl, Pendegrass and Frankfort

Examiners-in-Chief

Stahl

Examiner-in-Chief

ON BRIEF

ON REQUEST FOR RECONSIDERATION

This is a request for reconsideration of our decision of January 25, 1988, where we affirmed the rejection of the sole design claim.

We have carefully considered the arguments advanced by the appellant but find nothing therein to convince us that the decision was in error.

The appellant has interpreted our statement on page 3, lines 19 through 23, "[t]he tray illustrated in the Plexiglas reference is directed to the same general type of tray as the claimed invention, namely, a rectangular serving tray with handles adjacent the top ledge of the tray's short ends," to be a utilitarian or functional comparison between the claimed invention and that of the primary reference, Plexiglas. No such comparison was made, nor intended, and this is indicated by the next sentence in the same paragraph of the decision, which reads, "[w]e consider this illustration of a tray in Plexiglas to satisfy the Rosen requirement of an ornamental design basically the same as the claimed design."

Further, note our specific comments relative to the ornamental distinctions argued for patentability by the appellant in the last paragraph of page 3 and the first six (6) lines of paragraph 4 of the decision. No reference to function, utility or similar term is made in the decision, only ornamentality of the design. The phrases "design characteristics," "claimed design," "ornamental features," "ornamental design," and "appellant's design," used throughout the decision belie the appellant's criticism.

With extreme caution, however, we will defer to the appellant's criticism and change "type of tray" appearing in line 21 on page 3 of the decision, to-- ornamental tray design--.

Each and every distinction between the claimed design and the prior art has been evaluated and considered with the design as a whole, as specifically mentioned in the decision. The reargument of the issues that we have previously decided does not change our stated position herein.

The opinion on page 3 is modified. The decision remains affirmed.

DENIED

BOARD OF PATENT APPEALS AND INTERFERENCES

Robert F. Stahl

Examiner-in-Chief

Verlin R. Pendegrass

Examiner-in-Chief

Charles Frankfort

Examiner-in-Chief

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