Appeal No. 1996-0160
Application 07/898,691
declaration.” Reply Brief (Paper No. 26), pp. 26-27; In re Katz, 687 F.2d 450,
215 USPQ 14 (CCPA 1982).
With respect to both prior art rejections, the sole issue before us, is whether the
declaration of Dr. Pert and Mr. Ruff is sufficient to establish that the Corbin abstract, is their
own work of and, thus, is not available as prior art against the claimed method. In turning
to the declaration, we find that the declarants state that the Corbin abstract was authored
by two people, Corbin and Ruff. Declaration, p. 1, para. 2. This is not correct. As we
discussed above, the abstract was co-authored by three people, Corbin, Ruff and
Rodgers-Johnson. Since the declarants make no acknowledgment of Rodgers-Johnson
with respect to her role on the abstract and the claimed subject matter, we find the
declaration insufficient to remove the publication as prior art. Accordingly the rejection is
affirmed.
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