Ex parte KENDRICK - Page 4




          Appeal No. 1999-2064                                       Page 4           
          Application No. 08/619,853                                                  


               3. The file record of parent Application No. 07/817,894                
          indicates that a Declaration under 37 CFR  1.132 of Jimmy Ray              
          Kendrick was executed on April 8, 1993 and filed on April 13,               
          1993 (Paper No. 13).  This declaration avers that "[p]rior to               
          July 12, 1991, I actually reduced the invention of claim 1 of               
          the above-identified application to practice in the United                  
          States, by making actual operable specimens thereof."                       


               4. The file record of parent Application No. 07/817,894                
          indicates that in the Advisory Action of November 2, 1993                   
          (Paper No. 18) the examiner stated that the declaration was                 
          not effective for two reasons.  First, the portion of 37 CFR                
          which controls swearing back of a reference is 37 CFR  1.131,              
          not                                                                         
          37 CFR  1.132.  Second, the Mowry patent is clearly claiming               
          the same invention as the appellant is claiming.  The examiner              
          then stated that "neither 37 CFR 1.131 or 37 CFR 1.132 are                  
          available to the Applicant regarding this rejection."                       


               5. The file record of parent Application No. 07/817,894                
          indicates that in the Office action of February 10, 1997                    







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