Appeal No. 2003-0675
Application No. 09/789,388
(4th ed., New York, John Wiley & Sons, Inc. 1992). Concerning
the appellants’ overall submission, the examiner stated: “The
reply brief filed 11/6/02 has been entered and considered. The
application has been forwarded to the Board of Patent Appeals
and Interferences for decision on the appeal.” (Communication
mailed Jan. 22, 2003, paper 15.) The examiner, however, did not
comment on whether the newly submitted evidence has been entered
and considered.
37 CFR § 1.195 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.” In addition, MPEP § 1208.03
(Aug. 2001) explains:
Amendments, affidavits, and/or other evidence
must be submitted in papers separate from the reply
brief, and the entry of such papers is subject to the
provisions of 37 CFR 1.116 and 37 CFR 1.195. A paper
that contains an amendment (or evidence) is not a
reply brief within the meaning of 37 CFR 1.193(b).
Such a paper will not be entitled to entry simply
because it is characterized as a reply brief.
It is clear, therefore, that the examiner’s failure to
comment on the newly submitted evidence is not in accordance
with current patent practice and procedure. To correct this
deficiency, the examiner must clarify whether the submission of
the evidence complies with the provisions of 37 CFR § 1.195
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