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.
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