Appeal Number: 2007-0064
Application Number: 09/696,458
invention on or before May 26, 2000 (brief, pages 8-10).1 The appellant relies
upon a letter from Thomas F. Bergert, counsel for Gauge Works (named on the
Auto Meter flyer), wherein Mr. Bergert states that “[w]ith regard to the statement
on the flyer, ‘Available in June’, our client believes this statement indicated that
the product was to become available in June, 2000” (reply brief, page 4).
The examiner argues that “the flyer provided by Auto Meter Products is
proper prior art, and was submitted in good faith, in response to a proper query by
the Examiner” (answer, page 6). The examiner has not provided evidence that the
Auto Meter flyer was submitted in good faith. The examiner argues that the
examiner’s query to Auto Meter Products to obtain the flyer was proper under
37 CFR § 1.105(a)(1)(i)-(vii) (answer, page 6). As correctly pointed out by the
appellant (reply brief, page 3), that rule authorizes the examiner to require
submission of information from individuals identified under § 1.56(c) or any
assignee. The examiner has not identified the person contacted at Auto Meter
Products to obtain the flyer, let alone establish that the person is identified under
§ 1.56(c) or is an assignee and, therefore, has a duty of candor to the Patent and
Trademark Office.
1 The invention date is based upon a Rule 131 declaration by Douglas M. Jennings
filed April 21, 2003.
3
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