Appeal 2007-1268
Application 10/177,845
4. In a response under 37 C.F.R. § 1.116 filed June 27, 2006 ("Section
116 Amendment"), Appellants provided a summary of a telephone
interview with the Examiner that had been conducted on June 23,
2006 and argued that Ohkado was disqualified as a reference by
35 U.S.C. § 103(c). (Section 116 Amendment 2.) Appellants filed a
declaration under 37 C.F.R. § 1.132 ("Section 132 Declaration") with
the Section 116 Amendment.
5. The Section 132 Declaration recited that: (1) Ohkado had been
asserted as prior art under 35 U.S.C. § 102(e) in the Non-Final Office
Action; (2) Ohkado was assigned to International Business Machines,
the assignee of the present application; (3) the inventive entity of
Ohkado is distinct from the present inventive entity; and (4) the
present application was filed after the critical deadline of November
29, 1999. (Section 132 Declaration 1-2.) Therefore, the Section 132
Declaration asserted that Ohkado was disqualified as a reference
under 35 U.S.C. § 103(a) by 35 U.S.C. § 103(c). (Section 132
Declaration 2.)
6. The Section 132 Declaration did not address the qualification of
Ohkado as prior art under 35 U.S.C. § 102(a). (Section 132
Declaration passim.)
7. In an advisory action mailed July 20, 2006 ("Advisory Action"), the
Examiner refused to enter the Section 116 Amendment. The
Advisory Action stated that the application was not in condition for
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