Appeal No. 1996-1992
Application 07/898,373
However, Appellants clearly declare on page 6 of the declaration that “Since introduction
of casing embodying the Claimed Invention by Viskase Corporation, its U.S. sales have
increased to well in excess of $5,000,000 annually and the percentage of its share of
Viskase Corporation U.S. sales of small diameter, peelable nonfibrous cellulose casing
market has grown to over 10%.”
Second, in addition to misstating some of the factual evidence of Mr. Sherry’s
declaration, the examiner does not address on the record some of the other evidence
present by Mr. Sherry in the declaration. We note that Mr. Sherry has urged that the
casings required by the claims on appeal have been copied by others and that one of
assignee’s competitors has sought a license under patents which may issue to cover the
casing of the present invention. In addition, Appendix D of the Sherry declaration is a
letter to assignee from a customer stating that the casing used in the present process is a
significant improvement. This data is relevant in determining the obviousness of the
claimed invention and the examiner has not on the record considered the evidence related
to copying by competitors, license request by competitors, or the letter from a customer in
Appendix D which states that the presently claimed claim is a “significant improvement.”
The examiner has not reweighed the entire merits of the matter, as required. The filing
and admission of the Sherry declaration shifted the burden of going forward to the
examiner. By statute, this Board serves as a board of review, not a de novo examination
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