Appeal No. 1997-2246
Application 08/353,572
obviousness of any Schwendeman claim in light of any claim of
the appellants.
For the foregoing reasons, the examiner has not satisfied
his burden of showing that Schwendeman claims the same
patentable invention as does the appellants. Accordingly, the
examiner’s conclusion is erroneous that the appellants may not
resort to an affidavit under 37 CFR § 1.131 to attempt to
antedate the Schwendeman reference. The substance of the Rule
1.131 affidavit must be reviewed by the examiner.
In response to the first remand order from the board, the
examiner set forth his analysis of the Rule 1.131 affidavit on
pages 2-3 of Paper No. 21. The examiner concluded that the
Rule 1.131 affidavit is in any event inadequate to antedate
the Schwendeman reference. The appellants, in their reply
(Paper No. 22), failed to demonstrate error in the examiner’s
conclusion.
The examiner adopted the analysis contained in parent
application 07/971,693, which was directed to the same
affidavit. The examiner noted that the applicants have merely
stated that they were diligent from the time of the
Schwendeman reference was filed (9/12/88) to the alleged time
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