Appeal No. 2004-1240
Application No. 09/742,691
Club’s patent application. It is apparent that
the use of foil in the beauty industry requires
very specific sizing that the food industry has
never required. Anders declaration, paragraph 6.
In this Declaration, Scott Anders states that he
has reviewed the secondary references of Budny and
Clatterbuck, and provides his personal opinion that
appellant’s claimed invention represents a new and
unobvious use for an existing application. Scott
Anders also attests that it is his opinion that
appellant’s claimed invention is unobvious over the
prior art.
Hence, the Scott Anders Declaration represents an
expression of a personal opinion as to the
patentability of appellant’s claimed subject matter.
While “some weight ought to be given to a persuasively
supported statement of one skilled in the art on what
was not obvious to him”, legitimate inferences from
the art of record are weighed against opinions
expressed by a declarant. In re Lindell, 385 F. 2d
453, 455, 155 USPQ 521, 524 (CCPA 1967.
In the instant case, the obviousness rejection of
claim 1 includes the combination of the AAPA in view
of Clatterbuck or Budny. We refer to our discussion
of the prima facie case of obviousness involving the
combination of the AAPA in view of Clatterbuck or
Budny as set forth on pages 5-6 of this decision. As
we stated therein, the obviousness rejection is
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