Appeal No. 2005-1466
Reexamination No. 90/006,515
expert evidence has no place in the ordinary observer test” (request, pages 4-5).
Rather, as more fully explained in the decision, we continue to regard the appellant’s
declaration evidence as inadequate to establish novelty because the declarant (like
appellant) inappropriately focuses on differences in detail instead of the ensemble
appearance-effect of the designs under consideration and because no apparent basis
exists for the declarant’s stated opinion that “the average observer would take the
patented design for a different, and not modified, already existing design”
(declaration, page 2).
In short, notwithstanding a careful review of the appellant’s request for
rehearing, we continue to regard as proper the examiner’s § 102 rejection of the
appealed design claim as being anticipated by D’Apuzzo for the reasons expressed
above, in the examiner’s answer, and on pages 2-8 of our decision.
The request for rehearing is denied.
DENIED
Bradley R. Garris )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Charles E. Frankfort ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
Robert Nappi )
Administrative Patent Judge )
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