Appeal No. 1999-1959 Page 8
Application No. 08/881,586
ultimate determination that the subject matter of claim 28
would have been suggested by the combined teachings of De
Toledo and Miyano. Thus, we shall sustain the examiner’s
rejection of claim 28, as well as claims 29-39 which fall
therewith, under 35 U.S.C. § 103. However, in that our
rationale for sustaining the rejection differs from that
articulated by the examiner, we denominate our affirmance of
the obviousness rejection as a new ground of rejection
pursuant to 37 CFR § 1.196(b) in order to give appellants an
opportunity to respond thereto.
CONCLUSION
To summarize, the decision of the examiner to reject
claims 28-39 under the judicially created doctrine of double
patenting and under 35 U.S.C. § 103 is affirmed. Our
affirmance of the examiner’s obviousness rejection is
denominated a new ground of rejection under 37 CFR § 1.196(b)
for the reasons discussed supra.
In addition to affirming the examiner's rejection of one
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