Appeal No. 2006-0102 Page 7
Application No. 09/732,439
In this regard, appellants assert that the Board “is required to determine whether
the [e]xaminer applied the correct legal standards . . . .” Request, page 7.
At page 5 of their Reply Brief, appellants acknowledge that Williamson
was “not entered on the record. . . .” More specifically, the examiner finds
(Answer, page 17), Williamson “is not disclosed in the specification, was not
made of record in an information disclosure statement, and was not made of
record in previous responses.” Stated differently, this reference was relied upon
for the first time in the Brief. In this regard, we direct appellants’ attention to 37
C.F.R. § 41.33(d)(2), which states “[a]ll other affidavits or other evidence filed
after the date of filing an appeal pursuant to § 41.31(a)(1) through (a)(3) will not
be admitted except as permitted by §§ 41.39(b)(1), 41.50(a)(2)(i) and
41.50(b)(1).”
On reflection, appellants admit that Williamson was available and “known”
prior to appellants’ filing date; that Williamson is relevant to the subject matter at
issue; and that Williamson was not made of record in the case. Since appellants
failed to properly made of record in this case we deny appellants’ request for
rehearing to consider Williamson.
We have carefully reviewed the original opinion in light of appellants'
request, but we find no point of law or fact which we overlooked or
misapprehended in arriving at our decision. Accordingly, appellants' request has
been granted to the extent that the decision has been reconsidered, but such
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