Appeal No. 2006-1421
Application No. 10/434,397
majority disregards appellants' continued reliance on the Gwozdz
"Declaration" in the Argument section of the briefs. Also, the
majority does not fairly weigh the examiner's consideration of
the "Declaration" as part of the argued appeal record.
It is my opinion that any final decision rendered should
take into account the Gwozdz "Declaration" to afford appellants
a fair hearing absent further clarification of the record via a
Remand or Order. This is so because the "Declaration" is
entered into the record and discussed in the briefs and answers,
and such discussion should be given primacy over an inconsistent
statement submitted under an Appendix heading. The appendix was
apparently filed in response to one or more telephone calls.
Moreover, the detailed content of any telephone conversations or
calls respecting this matter are not memorialized in the record.
Thus, I would afford the arguments made in the briefs coupled
with the references to the Gwozdz "Declaration" that is of
record more weight than does the majority in resolving this
inconsistency short of further clarification sought via a Remand
or Order.
However, in so considering the Gwozdz ADeclaration@ in
light of the arguments made in the brief, I agree with the
examiner=s
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