• Sep 26 2019
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  • Category: CAFC Updates

Campbell Soup appeals the final written decisions of the Patent Trial and Appeal Board holding Appellants did not demonstrate that the claimed designs of Gamon’s U.S. Design Patent Nos. D612,646 and D621,645 (relating to gravity feed dispenser displays) would have been obvious over U.S. Patent No. D405,622 (“Linz”) and G.B. Patent Application No. 2,303,624 (“Samways”). To determine whether one of ordinary skill would have combined teachings of the prior art to create the same overall visual appearance as the claimed design, the fact finder must first find a single reference, a something in existence, the design characteristics of which are basically the same as the claimed design. To identify a primary reference, one must: (1) discern the correct visual impression created by the patented design as a whole; and (2) determine whether there is a single reference that creates basically the same visual impression. If a primary reference exists, related secondary references may be used to modify it.  Because the CAFC concludes that substantial evidence does not support the Board’s finding that Linz is not a proper primary reference, and substantial evidence supports the Board’s finding that Samways is not a proper primary reference, the CAFC affirms the Board’s conclusions that the claimed designs would not have been obvious over Samways or Samways in view of Linz, vacates the Board’s conclusion that the claimed designs would not have been obvious over Linz in view of Samways, and remands for the Board to consider the non-instituted grounds for unpatentability. Judge Newman dissents because in her view the PTAB correctly applied the law of design patents, and held that neither the reference design of Linz nor that of Samways creates a visual impression substantially similar to the claimed design.

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