Appeal No. 2002-0913
Application No. 09/107,643
Declarant’s statement as to what declarant understood the
figures of the ‘681 design application to represent (“I
understood that the outermost layer illustrated in my figures 1-3
of my design application Serial No. 93,681 represented a plastic
layer”) is of little probative value as to what one of ordinary
skill in the art would have understood those figures to
represent. Further, declarant’s opinion as to what one of
ordinary skill in the art would have understood the ‘681 design
application to disclose (“I believe that the person of ordinary
skill in the diaper designing art would understand from my
figures and from the title of my design patent application that
the outer layer was plastic”) fails because it recites a
conclusion and few, if any, facts to buttress that conclusion.
See, for example, In re Grunwell, 609 F.2d 486, 491, 203 USPQ
1055, 1059 (CCPA 1979) and In re Brandstadter, 484 F.2d 1395,
1405, 179 USPQ 286, 294 (CCPA 1973). Finally, the facts asserted
by declarant to support declarant’s opinion (the “prevalent
nature of disposable diapers having the outer layer as plastic in
that time era” and the similar statements in paragraph 3 of the
declaration) are not supported by objective evidence. Moreover,
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