While appellant's motion is couched in terms of striking items from the designation for the printed transcript, we treat it as also a motion to strike these items from the certified record, appellant having argued that these items should not be printed in the transcript, since they never became evidence of record. The certified record ordinarily includes evidence that was in possession of the PTO ( see In re Hutton, 568 F.2d 1355, 196 USPQ 676 (CCPA 1978)) and evidence which the PTO's own rules require it to consider ( In re Mead, 569 F.2d 1128, 196 USPQ 811 (CCPA 1978)). However, the certified record does not include items that were never submitted with the intention of becoming evidence in the case.
37 CFR 1.207; In re Mead, 569 F.2d 1128, 196 USPQ 811 (CCPA 1978).Summary
History at this court On appeal to this court, appellant moved to supplement the record "by insertion of his original patent No. 3,667,590 and its file history, and reissue application serial No. 393,539 (now abandoned) and its filed history * * *," In re Mead, 569 F.2d 1128, 1129, 196 USPQ 811, 812 (Cust. Pat.App. 1978), alleging " `intent to claim' was the dispositive issue before the board * *." Id. at 1130, 196 USPQ at 813.