Appeal No. 2003-1678 Page 4
Application No. 08/722,659
as they apply to claim 1, the only independent claim pending.
2. Procedural Issues.
The Appeal Brief contains Appendices A-G. The examiner stated:
The papers labeled Appendixes C-G, which are attached to the
instant Appeal Brief, will not be considered because there is no showing
of good and sufficient reasons why they were not presented earlier. See
§1.195 which states 'Affidavits, declarations, or exhibits submitted after
the case has been appealed will not be admitted without a showing of
good and sufficient reasons why they were not earlier presented.'
Examiner's Answer, page 3. In the Reply Brief, appellants responded to the non-entry
of the of Appendices C-G, stating:
The Examiner has refused to consider Exhibit G of the Appeal Brief
and the Singer and Smith review article addressed in Sections A and B of
the Appeal Brief. Appellants note that Exhibit G is recent case law
regarding anticipation rejections attached for the convenience of the
Board. In addition, the Singer and Smith article establishes that
inflammation involves the adherence of neutrophils to an activated
extracellular matrix followed by the infiltration or transmigration of
neutrophils into the wounded area and clearly elucidates the differences
between inflammation, tissue formation, and tissue remodeling during the
wound healing process. Appellants submit that this Singer and Smith
review article was provided with the Response filed March 18, 2002, and
should be considered as having been properly before the Examiner during
prosecution of the instant application.
Reply Brief, page 4, first full paragraph. The examiner issued a communication (Paper
No. 48) June 3, 2003, stating that the Reply Brief had been entered and considered and
that the file would be forwarded to the Board for a decision. As the record now stands,
the examiner did not back away from her decision denying entry of Appendices
C-G. Thus as the record now stands, Appendices C-G have not been entered and
considered by the examiner and not before us for review in the considering the issues
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