Appeal 2007-2050
Application 10/422,542
During examination of the application by the Examiner, the Appellants
submitted two declarations of Mary K. Richardson under 37 C.F.R. § 1.132, which
purport to demonstrate evidence of non-obviousness of the claimed invention
based on long-felt need (See Declaration of Mary K. Richardson, dated June 15,
2005 and Second Declaration of Mary K. Richardson, dated September 29, 2005
(the “Richardson Declarations”)).
The Appellants, through their counsel, a registered practitioner, filed their
original Appeal Brief on March 6, 2006. Although the Appellants presented
arguments in this brief referring to both Richardson Declarations (Original Appeal
Br. 6-10), the brief did not contain an Evidence Appendix as required by the rules.
37 C.F.R. § 41.37(c) (2006) states, in pertinent part,
(c)(1) The brief shall contain the following items under
appropriate headings and in the order indicated in
paragraphs (c)(1)(i) through (c)(1)(x) of this section,
except that a brief filed by an appellant who is not
represented by a registered practitioner need only
substantially comply with paragraphs (c)(1)(i) through
(c)(1)(iv) and (c)(1)(vii) through (c)(1)(x) of this section:
…
(ix) Evidence appendix. An appendix containing
copies of any evidence submitted pursuant to §§ 1.130,
1.131, or 1.132 of this title or of any other evidence
entered by the examiner and relied upon by appellant in
the appeal, along with a statement setting forth where in
the record that evidence was entered in the record by the
examiner. Reference to unentered evidence is not
permitted in the brief.
37 C.F.R. § 41.37(d) (2006) states,
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