Appeal No. 2006-2275 Page 5
Application No. 09/731,998
unavailable to appellants at the time of the final rejection and at the time of deciding
whether to appeal the examiner’s rejection. But the document was clearly available to
appellants after November 23, 2004, as per the OG notice. That means the document was
easily available to appellants at the time of filing their original principal brief on January
5, 2005, at the time of filing the amended brief of April 26, 2005, and at the time of filing
the reply brief on September 8, 2005. Yet, for all of their complaints about how the
rejection is improper because the examiner failed to provide a copy of the provisional
application, there is no evidence of appellants’ attempt to obtain a copy of this document
anytime after November 23, 2004.
Rather than merely access the aforementioned website and obtain a copy of the
provisional application in question, appellants appear to have exhausted much more time
scrounging up a copy of the 2004 OG notice and arguing in the reply brief about how
unfair the examiner had been in not supplying a copy of the document.
We find it a bit disconcerting that appellants have chosen to argue that it was the
examiner’s burden to supply the document and show its enablement vis-à-vis the instant
claims, when appellants had more than ample opportunity, at any time during the appeal
process, to obtain a copy of the provisional application and argue the merits of the
rejections by showing, if they could, with document in hand, that the provisional
application did not have the proper support and enablement to permit the June 30, 2000
filing date to be used against the instant claimed subject matter. Instead, it appears to us,
that appellants hid their heads in the sand, as it were, refusing to look at the substance of
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007