Appeal No. 96-2366
Application 08/076,824
which indicated that the now filed application is a continuation, not a continuation-in-part of
Application 07/803,234. The request under 37 CFR § 1.62 was accompanied by a
Preliminary Amendment containing, inter alia, an amendment to the specification. The
Preliminary Amendment also confirmed counsel’s apparent intent to file this application as
a “FWC-I-P” application. For present purposes, we will assume this application was
intended to be a continuation-in-part of Application 07/803,234, not a continuation as
counsel indicated in the request.
Under those circumstances, the request for filing the application under 37 CFR
§ 1.62 should have been accompanied by a new oath or declaration. It was not. Thus, this
application, to be considered proper, must be assumed to have been filed under the
provisions of 37 CFR § 1.62(d). According to that rule, the Patent and Trademark Office
should have notified counsel that an oath or declaration by the applicant was needed and
provided a period of time for the purposes of filing the oath or declaration and to pay the
required surcharge. It does not appear from this record that the Patent and Trademark
Office so notified counsel. However, the needed declaration was filed by counsel on
December 14, 1994, but it does not appear that it was accompanied by the required
surcharge.
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