Appeal No. 95-5032
Application 08/189,276
1993, January 31, 1994 and September 13, 1994. It was not until after the final rejection was made in
this application on November 16, 1994 that appellants first argued that Figures 3 and 4 were not prior
art.
It is the position of the examiner that since the record in this case is inconsistent, and since
appellants have admitted more than once that Figures 3 and 4 are prior art, that appellants’ repeated
admissions of prior art now make it so [answer, pages 6-7]. Appellants argue that any previous
reference to Figures 3 and 4 as prior art and the reference to Figure 3 as being “conventional” were
unintentional errors. Appellants assert that these unintentional errors do not “act as an ‘uncorrectable’
admission that the figure is prior art when the error is discovered” [brief, pages 11-13]. Based on the
facts of record here, we agree with the examiner that Figures 3 and 4 are available as prior art with
respect to the claimed invention for reasons which follow.
We agree with appellants that the alleged inadvertent error made here can be corrected.
Nevertheless, we are of the view that the erroneous admission cannot be corrected simply by stating
that it was erroneous. Although an admission by itself can create a presumption that something is prior
art, the admission cannot be overcome by simply repudiating the admission. In other words, the factual
showings to support an admission of prior art are very different from the showings necessary to
overcome such a presumption. Appellants’ reference to Figures 3 and 4 as prior art was sufficient to
legally support a presumption that the figures were prior art with respect to appellants, and this
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