Appeal 2007-2532
Application 10/608,791
the reference . . . Original exhibits of drawings or records, or
photocopies thereof, must accompany and form part of the
affidavit or declaration or their absence must be satisfactorily
explained.
37 C.F.R. § 1.131(b) (2006).
Some three decades ago, one of the predecessor courts of the Federal
Circuit criticized an affidavit submitted under Rule 131 that was
significantly more detailed than the declaration submitted in this case by
Jackson. In that case, affiants described the contents of three exhibits,
namely an invention disclosure, and 15 pages of what appeared to be records
of laboratory data. See, In re Borkowski, 505 F.2d 713, 716, 184 USPQ 29,
33 (CCPA 1974). The court criticized the declarations in the following
words:
The original and supplemental affidavits together with the
accompanying comments do not adequately explain what facts
or data appellants are relying upon to show a completion of
their invention prior to April 13, 1961. The affidavits for the
most part consist of vague and general statements in the
broadest terms as to what the exhibits show along with the
assertion that the exhibits describe a reduction to practice. This
amounts essentially to mere pleading, unsupported by proof or
showing of facts. . . .
A review of the fifteen notebook pages of Exhibits 2 and 3
reveals that they are by no means clear on their face. It was
appellants' burden to explain the content of these notebook
pages as proof of acts amounting to reduction to practice. That
was not done . . . Absent a clear explanation of the remaining
notebook pages pointing out exactly what facts are established
therein and relied on by appellants, the affidavits based thereon
are of little assistance in enabling the Patent Office and its
reviewing courts to judge whether there was an actual reduction
to practice of the invention.
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