Appeal No. 1999-0674
Application No. 08/654,536
presumably returned it to the Sandwich Factory. It is understood that this letter was entered
into the record by the examiner.
The second letter (Paper No. 22) submitted by appellant is from Debbie Iannucci, the
sales coordinator at Rheon, and is dated June 16, 1998. This second letter was filed with
appellant’s reply brief. The examiner refused to enter this second letter (see the advisory office
action dated April 2, 2001 (Paper No. 25)). Accordingly, the second letter (Paper No. 22) is
not before us for consideration.
The notations made by Ms. Iannucci on the Sandwich Factory letter of December 18,
1997 are not entitled to probative weight. In the first place, 37 CFR § 1.132 provides for
evidence only in the form of affidavits or declarations (i.e., declarations under 37 CFR
§ 1.68) for traversing a ground of rejection. See Ex parte Mayer, 6 USPQ2d 1966, 1968 (Bd.
Pat. App. & Int. 1988). In the present case, the document in question is merely an unsworn
letter, not a declaration. As a result, it is not competent evidence and therefore cannot be taken
as establishing the truth or falsity of representations asserted therein. See In re Hunter, 167
F.2d 1006, 1008, 77 USPQ 610, 612 (CCPA 1948) and Ex parte Mayer, 6 USPQ2d at
1968. Furthermore, there is no evidence entered in the record before us to establish that Ms.
Iannucci qualifies as a person skilled in the art or, at the very least, has personal knowledge
about the injection of foodstuff into a bagel product. Arguments of counsel dealing with Ms.
Iannucci’s qualifications (see page 20 of the main brief) cannot take the place of evidence. See
In re Pearson, 494 F.2d at 1405, 181 USPQ at 646. In view of the foregoing, there is no
competent evidence entered in the record before us to support the argument of appellant’s
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