Appeal No. 2006-3009
Application 10/712,114
Mr. Hawthorne further informed Mr. Shurtz that therefore, the Oral Hearing
scheduled for January 11, 2007, will be vacated.
Accordingly, as counsel was informed on January 10, 2007, it is
ORDERED that the Oral Hearing scheduled for 1:00 PM on January 11,
2007, is VACATED.
ORDER REMANDING TO THE EXAMINER
We remand the application to the Examiner for consideration and
explanation of the issues raised by the record. 37 C.F.R. § 41.50(a)(1)
(2006); Manual of Patent Examining Procedure (MPEP) § 1211 (8th ed.,
Rev. 5, August 2006).
The record shows that Appellants cite three non-patent literature
references in the Evidence Appendix and provide copies of these documents
in the Brief filed March 20, 2006 (Br., 14, “Appendix A,” “Appendix B,”
and “Appendix C”). Appellants do not state in the Evidence Appendix that
these references were previously made of record by the Examiner.
Appellants rely on these references in arguments (Br., e.g., 7-8 and 10).
The record further shows that Appellants appended the same
references and submitted arguments based thereon in the Amendment filed
February 6, 2006, in response to the Final Action mailed November 3, 2005.
The Examiner refused entry of this Amendment in the Advisory Action
mailed February 14, 2006.
37 C.F.R. § 41.37(c)(1)(ix) (2006) states in pertinent part:
An appendix containing . . . evidence entered by the examiner
and relied upon by appellant in the appeal, along with a
statement setting forth where in the record that evidence was
entered in the record by the examiner. Reference to unentered
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