Appeal No. 2005-0823
Application No. 10/300,895 Page 42
assertions relied upon by an examiner during the three to six
month period available to respond to an office action. They also
have the right to introduce rebuttal evidence under 37 C.F.R.
Section 1.132 (1993). Moreover, if applicants wish to cross-
examine the authors of written hearsay assertions, under 35
U.S.C. Section 145 (1988) they may bring a civil action in the
United States District Court for the District of Columbia seeking
adjudication that they are entitled to receive a patent. In such
an action, testimony could be compelled by subpoena under Federal
Civil Procedure Rule 45. See Gould v. Quigg, 822 F.2d 1074,
1076, 3 USPQ2d 1302, 1303 (Fed. Cir. 1987).”
We turn next to appellant's assertion (brief, page 19) that
"[t]he next paragraph also expresses the opinion of an agent that
the reporting is still weekly, and daily reporting would be bad."
From our review of Cogswell, we do not agree with appellant that
the agents referred to expressed an opinion that daily reporting
would be “bad.” From our review of the reference, we find that
the first agent said that daily reporting would take away
flexibility and change their workload because the staff knows
they have to get their work done by the end of the week, not by
the end of the day. The second quoted agent stated that he too
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