Appeal No. 93-3228
Application 07/796,023
ingredients even in major amounts. Therefore, upon 6
amendment, the examiner and appellant should reconcile the
scope 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 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 claims so rejected,
or both, and have the matter reconsidered
by the
examiner, in which event the application
6 See Ex parte Davis, 80 USPQ 448, 450 (Bd. App. 1948). See also In re Baxter,
656 F.2d 679, 686-87, 210 USPQ 795, 802-03 (CCPA 1981).
9
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