Appeal No. 95-1622
Application 07/890,593
In summary, we have affirmed the ground of rejection of appealed claims 2 through 14, 16 and
18 through 21 under 35 U.S.C. § 102(b) as being anticipated by or, in the alternative, under 35 U.S.C.
§ 103 as being unpatentable over Wright and the ground of rejection of appealed claims 2 under 35
U.S.C. § 102(b) as being anticipated by Bailey. We have reversed all of the remaining grounds of
rejection maintained by the examiner on appeal. Under the provisions of 37 CFR § 1.196(b)
(December 1997), we have entered a new ground of rejection of appealed claims 24 and 25 under 35
U.S.C. § 102(b) as being anticipated by or, in the alternative, under 35 U.S.C. § 103 as being
unpatentable over Wright.
The examiner’s decision is affirmed-in-part.
In addition to affirming the examiner’s rejection of one or more 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.”
Regarding any affirmed rejection, 37 CFR § 1.197(b) provides:
(b) Appellant may file a single request for rehearing within two months from the date of the
original decision . . . .
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 (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. . . .
Should the appellant elect to prosecute further before the Primary Examiner pursuant to 37
CFR § 1.196(b)(1), in order to preserve the right to seek review under 35 U.S.C. §§ 141 or 145 with
respect to the affirmed rejection, the effective date of the affirmance is deferred until conclusion of the
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