The most important of the "Morton-Norwich" factors for determining whether a particular product design is functional (In re Products, Inc., 671 F.2d 1332, 213 USPQ 9 (CCPA 1982)) that the Board considered was "the existence of a utility patent that discloses the utilitarian advantages of the design sought to be registered." In particular, the applicant is the owner of U.S. Patent Nos. 3,582,553 (‘553) and Patent No. 4,146,745 (‘745))
The board noted that the DETAILED DESCRIPTION OF PREFERRED EMBODIMENTS in th second patent identified a specific angle of the rear panels which form the pentagonal shape of the goods:
Of course, there were quite a few other structural elements that led to the patentability of that claim. And, as noted in the more-detailed analysis by John Welch in The TTAB Blog on July 26, 2005,
Referring to Figure 3, [e]ach of the rear panels includes four loudspeakers … on
the left, and … on the right …. [E]ach rear panel is a ¾ inch piece of plywood
about 10½ inches by about 10¾ inches forming an angle of 120 degrees so that the
angle between each of the rear panels and the wall upon which they direct sound
for reflection is substantially 30 degrees.
[Dependent] Claim 12 of the applicant’s ‘553 patent specifically claims the pentagonal shape of the design sought to be registered:
A loudspeaker system in accordance with claim 9 wherein said
rear baffles are contiguous flat panels forming an angle, and said loudspeaker cabinet comprises a pair of side panels each interconnecting a respective normally vertical edge of said front panel with a normally vertical edge of a respective rear baffle flat panel to define said internal volume as of pentagonal cross section and interconnecting generally
parallel top and bottom panels to coact therewith and define said internal
The Board pointed out in a footnote that Bose owns Registration No. 992,282,
issued in 1974, for the pentagonal design shown below for "loudspeaker systems."
This design appears to have a straight, rather than curved, front edge.
Apparently, the PTO did not deem this design to be de jure functional. One