Appeal No. 2006-3019
Application No. 09/735,586
With respect to the first issue, we are concerned
with the informal manner in which the Appellant
attempts to antedate the Smith reference.
Regulation 37 CFR 1.131(a) reads:
When any claim of an application or a patent under
reexamination is rejected, the inventor of the
subject matter of the rejected claim, the owner of
the patent under reexamination, or the party
qualified under §§ 1.42, 1.43, or 1.47, may submit
an appropriate oath or declaration to establish
invention of the subject matter of the rejected
claim prior to the effective date of the reference
or activity on which the rejection is based
[emphasis added].
The Examiner has forborne enforcing this
regulation, indicating in the Examiner’s Answer (Page
6):
Applicant's Declarations (Tab C dated 3/27/97, Tab
E dated 9/27/96) pursuant to 37 CFR § 1.131 swear
to claims in a different application, 08/398,862.
It would be appropriate to file a new Declaration
pursuant to 37 CFR § 1.131 specific to the case at
hand. Although these are not proper declarations
pursuant to 37 CFR § 1.131 with respect to the
claims in this application, they are evidence and
have been considered for what they show.
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