Appeal No. 2004-0572
Application 09/849,315
According to the examiner, this Declaration is
deficient in that it is based on opinion rather than objective
evidence. The examiner’s criticism has merit. For example, the
Declaration appears to be evidentiarily inaccurate in that the
aforenoted sketch depicts Miller’s stacked structure in an
“opposing-spoons” configuration rather than the “nested-spoons”
configuration disclosed by patentee. Even if the sketch were
accurate, the depicted structure seemingly would not accumulate
water since the upper stack would function like an umbrella to
prevent water from accumulating in the cavity shown in the
sketch. Additionally, contrary to the appellant’s belief,
the Declaration sketch plainly depicts a rubber-to-rubber
configuration along the tread strip portions of the stacked
structure, and such a configuration is adequate to satisfy the
corresponding claim 1 feature.
With further regard to this matter, the appellant’s
above discussed reliance upon the § 1.132 Declaration is
misplaced. That is, the appellant relies upon the Declaration
representations concerning the stacked structure resulting from
the method of Miller vis-á-vis the method defined by the appealed
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