Appeal No. 2006-3019
Application No. 09/735,586
We find this forbearance inappropriate. The
declaration under § 1.131 was submitted in a different
case, albeit the parent of the instant application, and
the record before us provides no such oath or
declaration addressed to the instant claims. It is
clear from the record that the instant application’s
rejected claims address somewhat different subject
matter than the claimed subject matter in the parent
case. Thus a declaration under § 1.131 would be
required to address the specifics of conception of the
subject matter as claimed in the instant application.
This declaration was required prior to the Final
Rejection, and certainly before this stage of the
appeal process. (See MPEP § 715.09, § 1206).
Without an effective declaration under § 1.131 the
Smith reference is not removed, and the rejection under
35 U.S.C. § 102(e) as recited above will be affirmed.
However, certain observations with respect to aspects
of diligence that have been addressed by the Examiner
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