Appeal No. 97-1079
Application 08/562,471
foot pad section 166 extends and retracts (by virtue of the fact
that it is mounted on a sleeve 152) so as to cover and uncover
empaling device 154, the meaning of “retractable locating” in the
context of independent claim 1 is totally unclear.
In summary:
The rejection of claims 1, 2, 4, 5, 7 and 8 under 35 U.S.C.
§ 103 is reversed.
A new rejection of claims 1, 2, 4, 5, 7 and 8 under 35
U.S.C. § 112, second paragraph, has been made.
This decision contains a new ground of rejection pursuant to
37 CFR § 1.196(b)(amended effective Dec. 1, 1997, by final rule
notice, 62 Fed. Reg. 53,131, 53,197 (Oct. 10, 1997), 1203 Off.
Gaz. Pat. & Trademark Office 63, 122 (Oct. 21, 1997)). 37 CFR §
1.196(b) provides that, “A new ground of rejection shall not be
considered final for purposes of judicial review.”
37 CFR § 1.196(b) also provides that the appellant, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of
rejection to avoid termination of proceedings (§ 1.197(c)) as to
the rejected claims:
(1) Submit an appropriate amendment of the claims
so rejected or a showing of facts relating to the
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