When determining obviousness in a design application, a two-step test is used. First, a primary reference must be identified, this primary reference being “something in existence” that has “basically the same” appearance as the claimed design. Second, other references can be used to modify the primary reference “to create a design that has the same overall visual appearance of the claimed design.”
Results for nonobviousness
The Supreme Court establishes the three-part nonobviousness inquiry: (1) determine the scope and content of the prior art, (2) determine the differences between the prior art and the claimed invention, and (3) determine the level of ordinary skill in the pertinent art. A court or the PTO may also use secondary considerations such as commercial success, long-felt but unmet needs, and failure by others as objective indications of nonobviousness.