Appeal No. 96-0881
Application No. 07/795,908
determining whether the subject matter of the appealed claims
is patentable over the references, only that the subject
matter of the claims cannot be reasonably ascertained. Thus,
this determination cannot be properly made on this record. In
any subsequent prosecution of this application, the examiner
should reconsider the relied upon references as well as the
the prior art references which form the basis of an opposition
proceeding in the European Patent Office. See the references
discussed in Paper No. 34.
The decision of the examiner is reversed and a new
rejection has been entered against the appealed 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
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