Appeal No. 2006-1421
Application No. 10/434,397
Kratz, Administrative Patent Judge, concurring:
I concur with the majority that the examiner's rejections
are sustainable for the reasons set forth in the answer and
agree with the reasoning and analyses provided in the majority
opinion with the exception of the majority=s decision respecting
a "Declaration" of Gary Gwozdz, one of the named inventors of
this application. The majority does not consider this
"Declaration" in their opinion in support of the Decision.
Unlike the majority, I would consider the Gwozdz "Declaration"
in fashioning a final Decision, on the record before us.
The Gwozdz "Declaration" was received by the Patent and
Trademark Office (PTO) on April 21, 2005 (the same date the
Notice of Appeal was filed), as shown in the image file wrapper
(IFW) record of this application. In an advisory action mailed
on May 09, 2005, the examiner approved entry of the Gwozdz
"Declaration" into the record. Appellants and the examiner
discuss the Gwozdz "Declaration" in the replacement brief and
the replacement answer, respectively, as acknowledged in
footnote 2 at page 7 of the majority opinion. In addition,
appellants relied on the Gwozdz "Declaration" in arguments
presented in the brief (pages 15 and 16) filed June 20, 2005.
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