Appeal No. 2005-1466
Reexamination No. 90/006,515
In this case, a person of average or ordinary intelligence would
undoubtedly view New World’s patent [i.e., the design claimed in the
patent under reexamination] as a “different, and not a modified
already-existing, design.” In re Bartlett, 300 F.2d 942, 943-44
(C.C.P.A. 1962). The Board came to the opposite conclusion because
it under-emphasized and/or did not appreciate the difference between
D’Apuzzo and the claimed design.
We have again considered each of the appellant’s previously advanced
arguments which have now been reasserted in this request. However, in contrast to
the belief expressed by appellant in the above quotation, the request for rehearing does
not state with particularity any points which were, in fact, “misapprehended or
overlooked by the Board” (37 CFR § 41.52(a)(1)(September 13, 2004)).
The appellant further argues that “[t]he Board also erred in its treatment of
New World’s expert declaration [i.e., the Hahn declaration of record]” (request, page
4). According to the appellant, “[i]n assessing the similarity of the designs here at
issue, the Board neglected to give any weight to the declaration and concluded that
this type of expert evidence has no place in the ordinary observer test” (id., at pages
4-5). This is not correct.
Contrary to the appellant’s afore-quoted statement, we considered, discussed
and quoted from the Hahn declaration at several points in our decision (see the
paragraph bridging pages 4 and 5, the last paragraph on page 6, the paragraph bridging
pages 7 and 8, and the first full paragraph on page 8). From our perspective, these
portions of our decision reveal the lack of merit in appellant’s assertion that “the
Board neglected to give any weight to the declaration and concluded that this type of
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