(concurring).
Much of the hiatus in this record and much of the confusion which followed could have been avoided by a simple statement of the statutory ground of rejection. Instead, we are called upon again to speculate as to what statutory ground of rejection is encompassed in the rejection of the appealed design application as being “unpatentable over” a group of references cited by the examiner.
The board is to be commended for its attempt to simplify the issue by placing its reliance on the Cohen patent. Yet we still must speculate as to whether this rejection is under 35 U.S.C. § 102 or § 103. From my study of the record I agree with the board’s characterization of the showing of Cohen that:
* * * 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 thing 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.
I disagree, however, with any implication in the above that we should be concerned with what the board calls “the basic underlying concept,” except as that “concept” finds expression in comparable designs.
This analysis suggests what seems to me to be the basic error in the opinion of the board. We are dealing here with a problem whose resolution lies in the field of appearance rather than in the area which encompasses utility patents. We are here concerned with a “new, orgi-nal and ornamental design for an article of manufacture” (35 U.S.C. § 171), not an article per se of some different ornamental design. It is clear from such fundamental considerations that the Cohen reference simply does not show the design of a Timepeice Dial comparable to the design disclosed and claimed by appellant. As described by appellant in his specification:
The characteristic feature of the design resides in the hour indicator markings and wherein such markings are of progressively increasing width throughout the range of the dial. [Emphasis added.]
In determining whether a design is patentable, the design as a whole, and the impression it makes on the eye must be considered. See In re McKay, 316 F.2d 952, 50 CCPA 1257; In re Braun, 275 F.2d 738, 47 CCPA 817; In re Crotty, 272 F.2d 957, 47 CCPA 738.
The Braun case, supra, gives us the test to be here applied. The design of the Cohen Timepiece Dial and appellants’ design for a Timepiece Dial simply do not look enough alike to support the appealed rejection.
Viewed as a rejection under 35 U.S.C. § 102(a), I agree with the conclusion of the majority that there is no anticipation of appellants’ design.
Construing the rejection as falling within 35 U.S.C. § 103, I differ from the majority in the application of this section to an application for a new, original and ornamental design. My view is best expressed by adopting certain of the statutory language of section 103 in pointing out that the differences between the claimed Timepiece Dial design and the design of the Timepiece Dial of the prior art are such that appellants’ design as a whole would not have been obvious.