Ex parte KENDRICK - Page 5




          Appeal No. 1999-2064                                       Page 5           
          Application No. 08/619,853                                                  


          (Paper No. 29) the examiner stated that the declaration "is                 
          considered irrelevant since applicant can not swear back of a               
          patent where the same invention is being claimed."                          


               6. The file record of this application indicates that                  
          this panel of the Board issued an order (Paper No. 18, mailed               
          December 6, 1999) requiring the appellant to clarify the                    
          record by addressing the following issue:                                   
               Is the patent to Mowry available as prior art under                    
               35 U.S.C.  102(e) against claims 29-48 in Application                 
               No. 08/619,853?                                                        
          In that order the Board required the appellant to either                    
          (1) provide an argument specifying in detail the reasons why                
          Mowry is not prior art under 35 U.S.C.  102(e), or                         
          (2) acknowledge that on the current record that Mowry is prior              
          art under 35 U.S.C.  102(e) and thus the entire Mowry                      
          reference is available as prior art.                                        


               7. The file record of this application indicates that in               
          the response to the Board's order (Paper No. 19, filed                      
          February 4, 2000) the appellant provided an argument                        
          specifying in detail the reasons why Mowry is not prior art                 







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