This appeal is from the decision of the Patent Office Board of Appeals affirming the rejection of the only claim in an application for a design patent, serial No. 47,727, filed September 13, 1957, for a “Timepiece Dial.”
*901Appellants claim “the ornamental design for a timepiece dial as shown”1 in the three embodiments shown in the figures of their application reproduced here:
Additionally, a Figure 1 (not reproduced) shows that the hour markers are raised.
Appellants’ claim was initially rejected as being directed to a multiplicity of designs as indicated by the three embodiments or forms represented in the drawings above, and appellants were aceord-ingly required to elect among the three. Appellants did so, but based on our intervening decision in In re Rubinfield, 270 F.2d 391, 47 CCPA 701, obtained reinstatement of the original drawing, and the Board of Appeals in a “Letter” held that “appellants’ right to present several different appearances in the same appli*902cation under the provisions of In re Rub-infield, [supra] * * *, should not be challenged by a rejection on the grounds of multiplicity.” Appellants successfully petitioned to have withdrawn a subsequent restriction requirement as between the form of Fig. 1 and Figs. 2 and 3 above, and the issue here is the patent-ability of the design on the basis of all three embodiments under 35 U.S.C. §§ 171, 102 and 103.
Although several references were cited, the board sustained the examiner’s rejection only on the basis of a patent to Cohen,2 Des. 145,390, August 13, 1946, which design appears as follows:
The board’s view was stated as follows:
We are of the opinion that the claim is unpatentable over the Cohen patent. While the clock dial there shown is not strikingly similar to either of appellants’ figures, it shows the basic underlying concept which is the only *903thing tying appellants’ two sets of figures together, i. e., increasing area of indicia to indicate increasingly large numbers. In the patent this is done, obviously by areas of different lengths and constant width, i. e., one button for a one, twelve buttons for a twelve.
Because of the ambiguity of the statutory basis for the board’s reliance on Cohen, the solicitor argues both 35 U.S.C. §§ 102(a) and 103:
* * * Because of the differences between the various species of appellants’ clock, it is respectfully submitted that the generic impression made upon the mind of an ordinary observer viewing the various species of that design would be one of progressively increasing areas of indicia to indicate progressively increasing larger numbers around the face of a dial. This visual impression is not believed to be one which is distinct from that formed by an observer of the Cohen patent. [Emphasis ours.]
However, even if the Cohen reference could not be said to “anticipate” the design features common to the three species of the claimed design, the claim would nevertheless seem to be unpatentable under 35 U.S.C. 103. The beads of the Cohen reference are clearly arranged in discrete groups which suggest progressive variations in indicia areas. If it were found that they are intended to be moved for digital counting as argued by appellants * * *, to make them stationary would not involve invention, [sic] Hence, it would appear that no unob-vious aspect of the design has been shown.
We do not agree that the test of section 102(a), insofar as it applies to a design case, is whether or not the generic “visual impression [of the claimed design] * * * is distinct from that formed by an observer of the * * * [reference],” as argued by the solicitor. Section 102(a) does not apply where the designs are not identical. The fact that appellants are claiming several related embodiments in the single claim does not mean the test is any different.
It appears that both the board and the solicitor generalize from the “differences between the various species of appellants’ clock * * * ” that the visual impression is indistinct. We think that is error; the “species” or embodiments must be considered separately. No one of the claimed embodiments is identical to the reference design and thus there can be no section 102(a) anticipation of the claim.
We also view rejection based on section 103 to be similarly erroneous. The board, while admitting the Cohen dial to be “not strikingly similar” to appellants’, generalized a “basic underlying concept which is the only thing tying appellants' * * * figures together, i. e., increasing area of indicia * * The board then finds that concept in an element of the patent, the (abacus) counting beads strung on rods or wires between a complete and conventional inner clock dial and an outer concentric ring carrying large hour numerals.
We think the board erred in abstracting a “concept” from appellants’ three embodiments, then searching for and applying in a rejection what it considered to be a common concept which it found in the Cohen reference. Assuming arguendo we are to discern concepts underlying designs, we do not agree that the reference “concept” is the same as that of appellants; the latter solely involves a progressive increase in size of a single unit as hour indicia, whereas the Cohen patent merely shows as one element in a total design, multiple units, such as beads or buttons, the number of which “mark the hours.” One is a “concept” of size, progression, the other of counting units.
However, it is not a concept but three concrete appearances that are being sought to be patented. Inclusion of more than one embodiment in a design claim does not mean the applicant is attempting to claim a concept; it is merely a claim covering several appear-*904anees. The necessity to determine whether or not the appearances are obvious has been beclouded, in the board’s view, by the plurality of designs. To us there is no question but that in overall appearance appellants’ dials are so dissimilar from that of the reference as to be non-obvious in a design sense. We therefore must reverse the decision of the board.
Reversed.
. We do not review the requirement of the examiner, made in the Final Rejection, that the phrase “and described” be added to the claim.
. We assume the rejection to be proper although it appears that the examiner cited Cohen “merely as an indication of a form of progression on a clock dial * * * if