Ex Parte Anderson et al - Page 7


                 Appeal No.  2006-0102                                                           Page 7                   
                 Application No.  09/732,439                                                                              
                 In this regard, appellants assert that the Board “is required to determine whether                       
                 the [e]xaminer applied the correct legal standards . . . .”  Request, page 7.                            
                 At page 5 of their Reply Brief, appellants acknowledge that Williamson                                   
                 was “not entered on the record. . . .”  More specifically, the examiner finds                            
                 (Answer, page 17), Williamson “is not disclosed in the specification, was not                            
                 made of record in an information disclosure statement, and was not made of                               
                 record in previous responses.”  Stated differently, this reference was relied upon                       
                 for the first time in the Brief.  In this regard, we direct appellants’ attention to 37                  
                 C.F.R.  41.33(d)(2), which states “[a]ll other affidavits or other evidence filed                       
                 after the date of filing an appeal pursuant to  41.31(a)(1) through (a)(3) will not                     
                 be admitted except as permitted by  41.39(b)(1), 41.50(a)(2)(i) and                                    
                 41.50(b)(1).”                                                                                            
                         On reflection, appellants admit that Williamson was available and “known”                        
                 prior to appellants’ filing date; that Williamson is relevant to the subject matter at                   
                 issue; and that Williamson was not made of record in the case.  Since appellants                         
                 failed to properly made of record in this case we deny appellants’ request for                           
                 rehearing to consider Williamson.                                                                        
                         We have carefully reviewed the original opinion in light of appellants'                          
                 request, but we find no point of law or fact which we overlooked or                                      
                 misapprehended in arriving at our decision.  Accordingly, appellants' request has                        
                 been granted to the extent that the decision has been reconsidered, but such                             









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