MPEP 1204.04 points out that other than dictionary definitions, the Record of evidence upon which an appeal brief can rely includes only "the items listed in the content listing of the Image File Wrapper of the official file of the application ..., excluding amendments, Evidence, and other documents that were not entered."
This definition is unclear because the IFW does not state which documents have been "entered". Clearly an amendment or an affidavit that appears in the IFW has been "entered", unless the Examiner specifically did not enter it. But there are many other kinds of documents in an IFW for which the above definition of "Record" seems unclear. Some examples:
1. References submitted with an IDS. I am fairly certain that at least the references that the Examiner marked as "considered", would constitute part of the Record and available to be relied on in an appeal brief. But the MPEP says "entered", not "considered". To my knowledge there is no indication in the IFW of whether a "considered" reference has been "entered" into the record. Does that mean the reference is "not entered"?
2. References submitted with an IDS but lined out by the Examiner because of an error in the citation format in the SB/08. Again, is such a reference "not entered"? There is no indication in the IFW of whether or not it was "entered", only whether it was "considered".
3. References submitted with a Citation of References which is not a formal IDS. These documents are "listed in the content listing of the Image File Wrapper", even though they are not designated in the IFW as "entered" or "not entered", or even whether they were "considered". Are they part of the Record and available to be relied upon in an appeal brief?
4. References that were attached to an Office action response (which was itself "entered"), but not submitted separately in either an IDS or a Citation of References. Such references are not separately "listed in the content listing" of the IFW, even though the entered amendment to which they were attached, is. Are such references considered part of the Record and available to be relied upon in an appeal brief?
It may be that when the MPEP says the Record includes only "the items listed in the content listing of the Image File Wrapper ..., excluding amendments, Evidence, and other documents that were not entered," what is meant is that only those documents that are listed in the content listing of the IFW but *designated as* "not entered" are excluded. If this is the intent, then MPEP 1204.04 should be revised to say that.
Another solution might be to revise the IFW content listing itself so as to designate each document as "entered" or "not entered".