Ex parte KATZ - Page 4




              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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