Appeal No. 1997-3102
Application 08/476,526
and reply briefs, the submission of such arguments at this
time is improper and we decline to consider or further comment
upon them. See, for example, Ex parte Hindersinn, 177 USPQ 78
(Bd. App. 1971) and 37 CFR § 1.192(a).
At pages 3 and 4 of appellant’s request, appellant
contends that, should the Board’s decision be sustained, it
would be incumbent upon the examiner to declare an
interference, or alternatively, the appellant herein would
request a interference based upon the decision be declared.
In light of our disposition of the issues raised in this
appeal, and in light of appellant’s arguments in the request
at pages 3 and 4, this application is returned to the examiner
to take action not inconsistent with our
decision and not inconsistent with the principles set forth in
In re Eickmeyer, 602 F.2d 974, 979, 202 USPQ 655, 660 (CCPA
1979), where the court indicated that the reason for not
permitting a 37 CFR § 131 affidavit, where a U.S. patent
reference claims the invention of rejected claims of an
application, as here, “is to compel the use of an interference
to determine priority of invention.”
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