Board of Patent Appeals and Interferences
Patent and Trademark Office (P.T.O.)
*1 EX PARTE LORENZO CILLARIO
Appeal No. 87-2741
November 22, 1989
Application for Patent filed February 25, 1985, Serial No. 06/704,140. This application is a continuation of Serial No. 06/502,323, filed June 8, 1983. Filling-Containing Confectionery Product and Method of Making Same.
George R. Repper et al for appellant
Primary Examiner--Thomas G. Wiseman
Before Torchin, Winters and Metz
The appeal from the decision of the Primary Examiner was heard on October 12, 1989. On October 31, 1989 (Paper No. 26), the undersigned panel of the Board of Patent Appeals and Interferences (board) entered its decision affirming the examiner. On October 16, 1989 (Received by the board on November 6, 1989), appellant filed a paper styled: "SUMMARY OF ORAL ARGUMENT AND RESPONSE TO ISSUES RAISED BY THE BOARD."
Such a paper is not provided for by our governing Rules of Practice (37 CFR). Nor has such paper been requested by this board or any member thereof. It appears from the tenor of Appellant's paper that he has misunderstood the purpose of an oral hearing which is solely "to emphasize and clarify the written argument appearing in the brief.... Oral argument is not evidence." In re Chiddix, 209 USPQ 78 (Comm'r.1980). Accord, Rosenblum v. Hiroshima, 220 USPQ 383 (Comm'r.1983).
Once the oral hearing provided for by 37 CFR 1.194 is held, ordinarily the only order of business left is the board's decision. It is manifestly inappropriate, and contrary to the orderly course of business, for an appellant to file a paper, as appellant has done here, in an apparent attempt to get the "last word," setting forth his perception of the substance of the oral hearing, and to enter into a rehash of the arguments of record. Nor is it appropriate to attempt, in such a paper, to present answers to questions presented by the panel, the answers to which were not forthcoming at the hearing or were not fully answered to appellant's satisfaction. Nor is it appropriate to amplify positions which could have been presented at oral hearing.
Of course, during the oral hearing, the panel may well deem it necessary, or otherwise desirable, for an appellant to present a subsequent paper regarding a matter raised at the hearing. D'Silva v. Drabek, 211 USPQ 292 (Comm'r.1980). However, to repeat, no such paper was requested here.
Accordingly, the paper is entitled to, and will be given no consideration by us, and is therefore dismissed. PAPER DISMISSED.
BOARD OF PATENT APPEALS AND INTERFERENCES
Norman G. Torchin
Sherman D. Winters
Andrew H. Metz