Appeal No. 1998-1589
Application No. 08/388,631
We have carefully considered the arguments raised by appellant in his request for
rehearing, however, those arguments do not persuade us that our decision was in error in
any respect.
The first argument raised by appellant is with respect to commercial success. (See
Request for Rehearing at pages 1-2 and 5-6.) This argument was not raised in the
principal brief or the reply brief. Appellant submits a declaration by the inventor, various
exhibits with respect to commercial success and an electronic mail communication from
Dr. George Marsaglia. These documents were not timely submitted and form no part of
the administrative record which was on review at the time of the decision. Therefore,
argument thereto is not persuasive with respect to the rehearing of our decision which is
based upon the record. 37 CFR § 1.192(a). Furthermore, we note the dates appearing
on the exhibits are well before the date of this Board’s decision and the date on the
communication from Dr. George Marsaglia is well before even the filing of the Appeal
Brief. Thus, this evidence could have been presented earlier.
Appellant presents the background with respect to the protracted prosecution before
the examiner(s) assigned to this application. (See Request for Rehearing at pages 2-3.)
This is a matter to be addressed to the supervisor(s) of the examiner(s) and is beyond the
authority of this Board. This argument does not go to error in our decision. Therefore, this
argument is not persuasive.
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