Appeal No. 2004-1305
Application No. 29/138,829
B. The Rejection
The single design claim stands rejected under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the description
requirement since the amended drawings introduce new matter not
supported by the original disclosure (Answer, unnumbered page 2,
referring to the final Office action dated Mar. 4, 2003, Paper
No. 15). The examiner finds that there is no support in the
original disclosure for five features in the amended drawings
(final Office action, Paper No. 15, page 2; see also the Brief,
page 4). As noted by the examiner (Answer, unnumbered page 2),
appellant’s arguments are solely based on the 37 CFR § 1.132
Declaration of David H. Wagner, Jr., dated June 30, 2003
(hereafter the “Wagner Declaration”; see the Brief, pages 5-17).
The examiner has replied to “affiant’s [sic, declarant’s]” points
from the Declaration in the Answer (unnumbered pages 3-6).
C. The Decision
We reverse the examiner’s rejection on appeal essentially
for the reasons stated by appellant in the Brief, Reply Brief,
the Wagner Declaration, and for those reasons set forth below.
D. The Opinion
As stated by our reviewing court in In re Daniels, 144 F.3d
1452, 1456, 46 USPQ2d 1788, 1790 (Fed. Cir. 1998):
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