Appeal No. 94-3182
Application 07/899,707
described by Ollar. On the other hand, if appellant declines
to explicitly state that the test tubes contain at least one
of broth, antibiotic and MAI, the examiner is justified and
hereby authorized to finally reject Claims 29-31 anew under 35
U.S.C. § 102(b) as anticipated by the test tubes Ollar
describes which are adapted to contain paraffin coated slides.
The patentability of the subject matter appellant claims
stands or falls with the clarity with which he defines the
subject matter that he regards as his invention.
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 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
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