Appeal No. 2004-0450 Page 3
Application No. 09/785,936
As stated in 37 CFR § 1.195,
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.
The examiner, however, did not invoke that rule to deny entry of Exhibits
A, B, or C, despite the absence of “a showing of good and sufficient
reasons why they were not earlier presented.” Rather, in the Office
communication mailed September 11, 2003 (Paper No. 17), the examiner
stated that “[t]he reply brief filed June 17, 2003 has been entered and
considered.” In our judgment, the only plausible interpretation which
these facts permit is that the examiner considered and made of record
Exhibits A, B, and C. This follows because, in their Reply Brief, applicants
set forth arguments based on those exhibits, and the examiner entered
and considered the Reply Brief.
Additionally, applicants’ main Brief (Paper No. 14), received January 29, 2003,
includes Appendix C and Appendix D. The former was filed before the Final Rejection
in this application and is clearly of record. The latter was filed with the main Brief.
Again, however, the examiner did not invoke the provisions of 37 CFR § 1.195 to deny
entry of Appendix D. On contrary, the examiner has considered and discussed
Appendix D in the Answer, page 13, first full paragraph. It is apparent, therefore, that
Appendix D has been entered and made of record.
THE MERITS
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