Appeal No. 2002-0494 Page 5
Application No. 29/102,729
Figures 8-20 directed to a transparent aquatic board of indeterminate length. We
agree.
The appellant's argue (brief, pp. 4-8) that new Figures 8-20 directed to a
transparent aquatic board of indeterminate length are not new matter since nothing is
being claimed in this reissue application that was not there originally. In support of what
does or does not constitute new matter in the context of a design patent application the
appellant cites In re Daniels, 144 F.3d 1452, 46 USPQ2d 1788, (Fed. Cir. 1998). We
find the appellant's argument unpersuasive for the reasons that follow.
The court in Daniels permitted in a subsequent application the removal of leaf or
surface ornamentation in a claimed design set forth in an earlier application because
the court observed that the leaf ornamentation did not obscure the underlying design,
all details of which were visible in the drawings of the earlier filed application. The leaf
design was considered a "mere indicium that did not override the underlying design."
Daniels, 144 F.3d at 1457, 46 USPQ2d at 1790-91. Further, the court observed that
the subject matter remaining in the later application was "common to that of the earlier
application." Id. Because the superimposition of the leaf design upon the underlying
design did not obscure the underlying design itself, the court considered the appellant
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