Appeal 2007-1309
Application 10/873,241
of rubber or a hard rigid material (FF 9). Rather, Ortwein describes the layer 3 as
“elastic” (FF 1), which means that the layer 3 is flexible and capable of expansion
(FF 7), not hard and rigid. Once again, Mr. Steele and Appellants ask us to ignore
the explicit disclosure of Ortwein in favor the Declarant’s conjecture as to a
specific type of material used to make the layer 3 of Ortwein. We are averse to do
so. As such, we find, after weighing the evidence, that Mr. Steele’s Declaration
fails to rebut the Examiner’s prima facie case of anticipation.
CONCLUSIONS OF LAW
We conclude that Appellants has failed to show that the Examiner erred in
rejecting claims 10 and 11 under 35 U.S.C. § 102(b) as anticipated by Ortwein.
DECISION
The decision of the Examiner to reject claims 10 and 11 is affirmed.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2006).
AFFIRMED
JRG
Anthony Asquith
#28
461 Columbia Street West
Waterloo, ON N2T 2P5 CA CANADA
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