Appeal No. 96-3822
Application 08/143,384
To the extent the examiner relies on the so-called
admissions from ¶ 18. of the Ross declaration as evidence in2
support of the rejection under 35 U.S.C. § 103, I enter the
following comments. In the first instance, the paragraph is
gross hearsay! What experts? What persons of ordinary skill in
the art? How did declarant distinguish between "an expert" and a
person "of ordinary skill in the art"? While I recognize that
hearsay is admissible in ex parte practice before the office,
¶18. is entitled to little or no weight because there is
absolutely no foundation for the statements made therein.
Assuming the declarant is an expert, even the opinions of experts
must find some foundation or basis in some evidence in the
record. Moreover, while ¶ 18. makes reference to the thickness
of the layer, claim 1 has no recitation or requirement for a
thick layer! Therefore, I strongly disagree with the appellants'
conclusion and, accordingly, the majority's as well, that the
Ross declaration "supports the position that experts in the field
and those of ordinary skill in the art believe that embossing a
reduced pressure environment technique wear layer would destroy
¶ 18. of the Ross declaration is reproduced at page 3 of the2
Examiner's Answer.
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