Appeal No. 2006-3009
Application 10/712,114
evidence is not permitted in the brief. See § 41.33 for treatment
of evidence submitted after appeal.
37 C.F.R. §41.33(d) (2006) states in pertinent part:
(d)(1) [E]vidence filed after the date of filing an appeal
pursuant to § 41.31(a)(1) through (a)(3) and prior to the date of
filing a brief pursuant to § 41.37 may be admitted if the
examiner determines that the . . . evidence overcomes all
rejections under appeal and that a showing of good and
sufficient reasons why the affidavit or other evidence is
necessary and was not earlier presented has been made.
(2) All other . . . evidence filed after the date of filing an appeal
pursuant to § 41.31(a)(1) through (a)(3) will not be permitted
except as permitted by §§ 41.39(b)(1), 41.50(a)(2)(i) and
41.50(b)(1).
It is apparent that Appellants’ submission of and reliance on three
references in the Brief not previously made of record by the Examiner
violates the above rules. See MPEP § 1206 (8th ed., Rev. 5, August 2006).
Accordingly, the Examiner is required to take appropriate action
consistent with current examining practice and procedure to notify
Appellants of the above deficiency in the Brief filed March 20, 2006, and
provide Appellants with the opportunity to cure the same as provided in
37 C.F.R. § 41.37(d) (2006); MPEP § 1205.03 (8th ed., Rev. 5, August
2006), with a view toward placing this application in condition for decision
on appeal with respect to the issues presented.
This Remand is not made for the purpose of directing the Examiner to
further consider the grounds of rejection. Accordingly, 37 C.F.R.
§ 41.50(a)(2) (2006) does not apply.
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