Appeal 2006-2334
Application 09/909,913
claim 27 to specify the pliable material conforms to and at least partially
surrounds the food item in any manner, which engagement can be viewed
from the perspective of the pliable material or the food item and can involve
only the upper and lower surfaces of the food item (see above pp. 5-6).
Thus, we agree with the Examiner’s determination that the method of
Peterson employing the apparatus taught therein would at least meet the
limitation of the engagement of the pliable material and the food item
specified in these claims. Furthermore, the application of pressure by
Peterson’s apparatus so as not to disrupt the collagen connective material
would reasonably appear on this record to fall within the pressure range
specified in claim 27 as well as independent claims 92 and 101.
We point out that consideration of Peterson in this manner constitutes
a “new” ground of rejection on this record to which Appellants have not had
an opportunity to respond. See In re Kronig, 539 F.2d 1300, 1302, 190
USPQ 425, 426 (CCPA 1976).
Accordingly, we remand this application to the Examiner to take
appropriate action consistent with current examining practice and procedure
to consider the application of Peterson along with any other prior art
developed by the Examiner, to pending independent claims 27, 92, and 101
and claims dependent thereon under 35 U.S.C. § 102(b) and/or § 103(a), as
appropriate, in view of our comments above along with other issues that
arise from the record, and determine whether a new ground or grounds of
rejection should be entered with respect to one or more of these claims.
37 C.F.R. § 41.50 (a)(1) (2006).
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