Appeal No. 2006-1218
Application No. 10/601,884
non-entered declarations and other new evidence in the reply
brief. This prohibition is directly addressed by rule 37 C.F.R.
§ 41.41. This rule states in relevant part that, “a reply brief
shall not include . . . any new or non-admitted affidavit or
other evidence.” As such, the Board has not considered the non-
entered declaration and its contents.
Regarding the handout attached to the reply brief, we note
that page 3 titled, “Trapped LiF due to Rapid Heating,” has a
photographic comparison of Appellants’ product with Sellers’
prior art product, whereas page 3 of the handout submitted at
the April 1, 2005 interview does not. This comparison is new
evidence, which according to the aforementioned rule, 37 C.F.R.
§ 41.41, shall not be included in a reply brief. As such, we
will not consider the reply brief handout. However, even if we
consider the reply brief handout or, for that matter, the
interview handout, the material presented therein does not
persuade us that the Examiner’s inherency findings are in error.
The reply brief and the interview handouts relate to a
comparison of the general disclosure in the Sellers patent and
Appellants’ specification, as opposed to the specific subject
matter defined by the appealed claims. As such, in the context
of the claimed subject matter, the handouts have little, if any,
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