Appeal No. 2006-1421
Application No. 10/434,397
However, there is an apparent inconsistency in the
replacement brief in that appellants stated "[t]here is no
extrinsic or declaration evidence at issue in this Appeal" under
an "Evidence Appendix" section heading while appellants
continue to rely on the entered Gwozdz "Declaration" in the
Argument section of the replacement brief. The "Evidence
Appendix" submission was filed as a part of or, in the
alternative, to be a part of the replacement brief.4
The majority resolves this matter by relying on the
statement submitted under the "Evidence appendix" caption and
noting the absence of a copy of the Gwozdz "Declaration"
submitted with the brief, in support thereof.5 In so doing, the
4 There were several submissions respecting the replacement brief. The IFW
record is not entirely clear in recording the makeup of the individual
submissions. For example, one copy of the replacement recorded in the IFW
file record of this application as an October 14, 2005 submission includes
portions from a facsimile transmission of October 14, 2005 and portions from
a facsimile transmission of October 13, 2005. The other copy of the
replacement brief recorded in the IFW file record as an October 14, 2005
submission includes a copy of a first class mail submitted replacement brief
that does not include an Evidence Appendix. Review of the IFW file record to
determine if the IFW file accurately reflects the actual submissions made by
appellants should be undertaken prior to final disposition of this
application. Corrections to the record should be made, if necessary, to
accurately reflect the filings submitted by appellants.
5 The majority refers to the requirements of 37 CFR ' 41.37 (c)(1)(ix)(2004).
However, it is noted that the record does not reflect that appellants were
afforded an appropriate notification with a time period to comply that
satisfies the requirements of 37 CFR ' 41.37(d) regarding a lack of a copy of
the ADeclaration@ in an Evidence Appendix or any other perceived defect in
the brief in terms of satisfying the requirements of 37 CFR ' 41.37 (c).
Indeed, at the oral hearing, counsel presented arguments consistent with
appellants= continued reliance on the Gwozdz ADeclaration@ in this appeal.
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