In re Swett

Baldwin, Judge. Swett appeals from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, sustaining the rejection of ■the claim in his application for a design patent, entitled “Storage Container for Lettuce or the Like.”1 The claimed design is sufficiently clear from Figures 2 and 5: [1237] Tlie references relied on are a page from a “Tupperware” catalogue,2 a patent to one Liberman,3 and an advertisement in Housewares Review4 The board relied on the appearance of two food storage bowls which were shown and described in the Tupperware catalogue as “Wonderlier” bowls and “refrigerator” bowls. The “Wonderlier” bowls are wider than they are deep, and all have an annular rim spaced just below the lip. The refrigerator bowls have a shape which is substantially similar to the shape of. appellant’s bowls, but they have no annular rim. Both types of bowls have sealing covers, but the covers do not have the domed central portion of the design at bar. The Housewares Review advertisement shows food storage containers which, although they have curved sid.es, are generally shaped like a cube. The covers of the containers have a center section which is raised a fraction of an inch above the main plane of the cover. The center sections are flat, and conform in shape to the generally square shape of the cover. Liberman discloses packages for light .bulbs. The packages have covers which have embossed central portions for holding the light bulbs in alignment with the package. The embodiment relied on by the board is shown in Figure 2: ; [1238] •Although Figure 6 differs slightly from the embodiment specifically relied on by the board, it gives a concise picture of the construction of •the package: • . The board considered the domed top in appellant’s design obvious after a consideration of the Housewares Review and Liberman references. It is not clear from the board’s opinion whether it relied upon these references as alternatives, or relied on one in view of the other: The Housewares Review plastic “Storage Pats” have * * * [raised] tops which correspond in outline to the substantially rectangular outline of the containers. Providing round tops as those in the Tupperware containers with central dome would appear to be an obvious design extension, of the Houseware showing. This, in our opinion, would also be even more obvious from Liberman (Figs. 1, 2 and 3) who discloses a circular cover 26 with a central circular dome, giving precisely the same appearance of the cover top as that of the subject design. We have considered both grounds. The board’s position may be summarized as being that it would have been obvious to use the shape of the Tupperware refrigerator bowl in conjunction with the annular rim of the Tupperware “Wonderlier” bowl, and to provide the bowl cover with a domed central portion from a consideration of the Housewares Review and Liberman references. [1239] Opinion We think the design at bar creates a distinct and different impression, and that it is not fairly taught or suggested by the combination of references relied on. In particular, the cover with the domed center portion is not rendered obvious by any combination using the Housewares Review and Liberman references. The raised portion of the covers of the food storage containers in Housewares Review is completely flat. It no more suggests a dome than the roof of the Kennedy Center suggests the roof of the Capitol. The Liberman reference does show that the combination of .shapes utilized in appellant’s' covers, a spherical section rising out of a planar surface, was previously known. However, the combinations of shapes which had never been used before for any purpose would be scarce indeed. The problem is that the references are devoid of any reasons why their disclosures might be combined or any suggestion that it would have been obvious to do so. Whether or not the doctrine of “nonanalogous arts” is applicable in any manner to design patents, we think that the references relied on here are not “so related that the appearance of certain ornamental features in one would suggest the application of those features to the other.” In re Glavas, 43 CCPA 797, 801, 230 F. 2d 447, 450, 109 USPQ 50, 52 (1956). The only thing in the record that might suggest the proposed combination of the reference disclosures is appellants design itself. See In re McKay, 50 CCPA 1257, 316 F. 2d 952, 137 USPQ 558 (1963); In re Jennings, 37 CCPA 1023, 182 F. 2d 207, 86 USPQ 68 (1950). The decision of the board is therefore reversed. Footnotes [1] Application Serial No. D — 5008, filed December 12, 1906, which is a continuation-in-part of application Serial No. D-906, filed February 3,1966. [2] Cited by the examiner and the board as “Tupperware Catalog, received November 30, 1962, page 6.” [3] U.S. Patent No. 3,247,954, issued April 26, 1966, on an application filed August 20, 1963. [4] Housewares Review, May 1951, page 24.