Appeal No. 2006-0014 Παγε 4
Application No. 09/922,182
Cir. 1993). As such, it is the examiner's burden to establish that Kim is available as
prior art under 35 U.S.C. § 102(e)1 with respect to the claims under appeal.
In view of the burden to establish that Kim is available as prior art under
35 U.S.C. § 102(e) resting with the examiner, we remand this application to the
examiner to respond to the arguments raised in the Reply Brief that Kim is not prior art
under 35 U.S.C. § 102(e).
In addition, since the Appeal Brief does not comply with all the requirements of
37 CFR § 41.37(c) as set forth above, we remand this application to the examiner to
notify the appellants of the non-compliance and give the appellants a time period within
which to file an amended brief as provided by 37 CFR § 41.37(d).
CONCLUSION
This remand to the examiner pursuant to 37 CFR § 41.50(a)(1) (effective
September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz. Pat. Office
1 35 U.S.C. § 102(e) provides that a person shall be entitled to a patent unless the invention was
described in a patent granted on an application for patent by another filed in the United States before the
invention by the applicant for patent.
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