Appeal No. 1997-1382
Application No. 08/478,172
This is a provisional obviousness-type double patenting rejection because the
conflicting claims have not in fact been patented.
CONCLUSION
To summarize, the decision of the to reject claims 1-9 under 35 U.S.C. § 102 is
reversed.
In addition to reversing the ’s rejection of all of the claims, 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, “A new ground of rejection shall not be considered final for purposes of judicial
review.”
37 CFR § 1.196(b) 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 (37 CFR § 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 claims so rejected, or both, and have the
matter reconsidered by the examiner, in which event the application will be
remanded to the examiner. . . .
(2) Request that the application be reheard under § 1.197(b) by the
Board of Patent Appeals and Interferences upon the same record. . . .
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