Appeal No. 2004-1300
Application No. 09/872,564
proper recourse for appellant upon receiving notice that the
Declarations were denied entry was a petition. Certain matters,
such as an examiner's refusal to enter an amendment or
declaration after final rejection, are not within the scope of
review of this Board. It is of no moment if, as contended by
appellant, the examiner's first statement on the record denying
entry of the Declarations is in the Examiner's Answer. The fact
remains that the Board cannot consider declaration evidence that
is not entered into the record in reaching a decision, nor can
the Board direct the examiner to enter a declaration that has
been refused entry. Manifestly, we cannot grant appellant's
request to reverse the examiner's rejection of claim 1 based on
declaration evidence that is not of record. Appellant had ample
opportunity to clarify the status of the declarations after the
examiner's Advisory Action of April 3, 2003 and, furthermore,
appellant had the opportunity to petition the examiner's denial
of entry of the Declarations after such denial was clearly
articulated in the Examiner's Answer.
Accordingly, based on the foregoing, appellant's request is
denied.
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