finding tweezer design obvious in light of prior art reference that contained vertical rather than horizontal fluting and straight rather than curved .pincers
How later courts described this case
- finding tweezer design obvious in light of prior art reference that contained vertical rather than horizontal fluting and straight rather than curved .pincers
- finding tweezer design obvious in light of prior art references that contained vertical rather than horizontal fluting and straight rather than curved pincers
- discussing Case: 22-1253 Document: 45 Page: 14 Filed: 01/20/2023 14 LKQ CORPORATION v. GM GLOBAL TECHNOLOGY OPERATIONS LLC the “ordinary observer” and “ordinary designer” tests
- different shape of fluting on finger grips and different shape of pincers were de minimis differences in design for tweezers
Written by the judges who cited it.
The opinion
BALDWIN, Judge,
dissenting.
While agreeing with the majority opinion that the “ordinary designer” test of § 103 should be applied, I would reach a different conclusion.
*1220 The major difference between the appealed design and the design shown in Johnson is in the fluting on the cylindrical sleeve. This difference is not de minimis but rather creates quite a difference in appearance between the two designs. I cannot agree with the majority that it would have been obvious to the ordinary designer to make the modification of the fluting.
Nor can I agree with the board’s conclusion that “the references are all from reasonably pertinent arts and the claimed design would have been obvious in view of such designs in the prior art.”
Appellant has taken issue with that board conclusion basically by arguing that the Deibel reference 1 and the Mantelet reference 2 are non-analogous art and that it is improper to use the two references to remedy a deficiency in the Johnson design in order to show a design similar to appellant’s illuminable tweezer having a sleeve with longitudinal fluting over a portion of its length.
Even assuming, arguendo, that the board did not err by sanctioning utilization of bits and pieces of designs from five references to establish a prima facie case of obviousness of acclaimed design, I agree with appellant that the board erred in concluding that all the references are from reasonably pertinent arts. Deibel and Mantelet are not analogous art and should not have been utilized to support the § 103 rejection.
Accordingly, I would reverse the decision of the board.
. U.S. Patent Des. 126,574, issued to Deibel on April 15, 1941, for an ornamental design for a flashlight head:
. U.S. Patent Des. 247,317, issued to Mantelet on February 21, 1978, for an ornamental design for a cosmetic applicator: