dissent">Bich, Judge,

dissenting:

While not disagreeing with the board’s holding that appellant’s design “presents an appearance of neatness and efficiency that is not fully taught by the references,” the majority finds that the design is not patentable. This conclusion is apparently predicated on the notion that each feature of the design, such as “the provision of a channel member of such size as to provide the particular border,” the “exact size and arrangement of such a border, and the number of faces on which it appears,” “the proportions of appellant’s device,” and “the location of the eyelets” are either the result of “considerations of utility” or “merely matters of choice.”

Starting from the admissions that there is novelty in the design, that it is for an article of manufacture and that it is “ornamental” at least in the sense of presenting an appearance of neatness and efficiency (which to my mind is enough to meet that requirement) it remains only to decide whether the design “as a whole would have been obvious” under Section 103. I think it would not and so I think it is patentable.

As to the holding that the design at bar is unpatentable because the selection and arrangement of its several elements are “merely matters of choice” or due to functional considerations, I would point out that the design of articles such as these potentiometers is always a mere matter of choice of size, shape, structure, materials, proportions, finishes and the like and that good modern design of the character the design patent statute should foster results from the felicitous union of function and the factors, not dictated by function, which create appearance.

Design must be judged solely by looking at the end result. Its presence or absence cannot be determined by a process of mental dis-assembly and comparison of parts with the prior art. To judge it *821against the prior art of record we should look at the appellant’s design and at what the art shows and decide whether the latter would suggest the former. When this is done, what do we see ? We see in Harvey’s catalog an illustration of a “Key and Phones Outlet Box” which looks like a shallow receptacle outlet box as used for flush mounting in domestic wiring systems having a rectangular, flat cover plate in which are two phone jacks in alinement with the two mounting screws. The plate appears to have the common beveled edge of outlet receptacle cover plates bearing a decorative design. Nothing in it looks like anything in appellant’s design except that the round holes in the jacks resemble the round holes in appellant’s eyelets, about as trivial a resemblance as can be imagined. The other reference is a photograph of three rectangular electrolytic capacitors in cardboard containers on one side only of which there appear to be printed labels coextensive with the faces to which they are attached. To me there is no resemblance to appellant’s design other than the common characteristic of rectangularity. Not even the general proportions are the same.

Therefore, applying the simple and only possible test of similarity of overall appearance, it is clear to me that appellant’s design is new and as a whole would not have been obvious to a designer familiar with the references relied on. I would reverse the board in this case for the same reasons we reversed and held patentable the design of the “Recess Bracket for Night Light” in In re Berger, 44 C. C. P. A. (Patents) 714, 239 F. 2d 397, 112 USPQ 54. I think we should be consistent.

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