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In In Re Garner, 2007-1221 (Fed. Cir. Dec. 5, 2007), a patent applicant ('Garner') appealed from a ruling by the U.S. Patent and Trademark Office Board of Patent Appeals and Interferences ('Board') that he had failed to make a prima facie showing of priority in an interference proceeding. The Federal Circuit held that the Board erred in refusing to consider certain documents Garner submitted in response to an Order to Show Cause, but which had not been submitted along with the Rule 202(d) declaration that provoked the interference. However, the Federal Circuit deemed this error harmless because the additional documents did not establish a prima facie case of priority.

Following an anticipation rejection over U.S. Patent No. 6,480,324 ('324 patent), Garner copied all claims of the '324 patent in order to provoke an interference. However, as the junior party, Garner had the burden of establishing prior invention under 37 C.F.R. '41.202(d). In an attempt to do so, Garner retitled a Rule 131 declaration filed in connection with the parent of the application at issue, as a Rule 202(d) declaration. In response to this Rule 202(d) declaration, the Board declared an interference, but found the same insufficient to establish a prima facie showing of priority. The Board therefore issued an Order to Show Cause why judgment should not be entered against Garner. In response to this Order, Garner relied on three items to show priority that had not been part of his original Rule 202(d) submission: 1) a Rule 131 declaration filed on Sept. 2, 2003 (2003 Garner declaration); 2) the specification of Garner's provisional application; and 3) the specification of Garner's utility application. The Board found that these three items were 'new evidence' that it was not permitted to consider under Rule 202(d) without a showing of good cause and that Garner had not attempted to show good cause for his belated reliance. Therefore, the Board issued judgment against Garner.