Ex Parte CLEMENCE et al - Page 2

            Appeal No. 1997-2355                                                                              
            Application 08/228,300                                                                            

                   Appellants argue that the rejections of claims 11 and 41                                   
            should be reversed because these claims are of the same scope as                                  
            allowed claim 5.  Claims 11 and 41, however, include the specie                                   
            [16",(+)]-15-methyl-20,21-dinoreburnamenine, which is the specie                                  
            upon which the examiner’s prima facie case of obviousness is                                      
            based.  This specie has been deleted from claim 5 (amendment                                      
            filed January 10, 1996, paper no. 15, page 2).                                                    
                   Appellants argue that the board did not take into account a                                
            typographical error in the Oberlander declaration dated                                           
            February 6, 1992 wherein, appellants argue, “Example 4” with                                      
            respect to Clemence should have read “Example 5”.  As pointed out                                 
            in our decision (page 7), both the examiner and appellants                                        
            referred on the record to a comparison against Clemence’s                                         
            example 4, and our decision was based on that record.  Appellants                                 
            include with their request a declaration by Jean Claude                                           
            Vieillefosac.  This declaration is not timely, as it was not made                                 
            of record and considered by the examiner prior to our decision.                                   
            Consequently, we do not consider this declaration at this time.                                   


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