Novelty (related to Prior designs)
(Conclusion) Novelty should NOT be found.
When “Similarity” between designs judged, it is inappropriate to consider that the applied design could be defined by taking into consideration matters other than those depicted in the drawing attached to the application or represented in the photograph, model or specimen attached to the application, or matters recognized from those depicted or represented as above.
The plaintiff asserts that the wavy shape of the upper edge of the present design is significantly different from the corresponding part of the cited design, especially when it is mounted.
However, as stated above, no drawing of the design in the mounted state was submitted in the application. Matters other than those described in the drawing attached to the application should not be taken into consideration.
<Writer: Hideki Takaishi (Attorney-at-law licensed in Japan and California)>