Ex Parte Pearson - Page 6



          Appeal No. 2006-1667                                                            
          Application No. 10/775,634                                                      
          shows that a convex shape is created.  The declaration is                       
          correct, however, in stating that Gordon does not disclose                      
          anything (such as the appellant’s pieces of flexible material                   
          (figures 4A-4C), hollow chambers (figures 5A-5C) or multiple                    
          chambers of varying diameters (figures 6A-6D)) for maintaining                  
          the convex shape under the weight of both a mattress and a                      
          person.  The examiner argues that the declaration is ineffective                
          because “a declaration under 37 CFR 1.132 can only be used to                   
          overcome a provisional rejection under 35 USC § 102(e) to show                  
          that the claimed invention is not by another” (answer, page 9).                 
          The examiner is incorrect.  Rule 132 (65 FR 57057, Sep. 20, 2000)               
          states that “[w]hen any claim of an application or a patent under               
          reexamination is rejected or objected to, any evidence submitted                
          to traverse the rejection or objection on a basis not otherwise                 
          provided for must be by way of an oath or declaration under this                
          section.”  Thus, that rule is not limited in the manner argued by               
          the examiner.  The examiner’s argument, therefore, is not                       
          effective for refuting the statement in the declaration that                    
          Gordon’s device has nothing to maintain the convex shape under                  
          the weight of a mattress and a person.                                          
               For the above reasons we find that the examiner has not                    
          carried the burden of establishing a prima facie case of                        
                                                                                         
          considered the supplemental declaration in reaching our decision.               
                                            6                                             



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