Appeal No. 1996-2042
Application No. 08/086,602
§ 102(b) as anticipated by Kohl is reversed; a new ground of
rejection has been entered under the judicially created
doctrine of obviousness-type double patenting; and the
examiner is directed to reconsider the question of obviousness
(35 U.S.C.
§ 103) of the appealed subject matter in view of the prior art
Kohl reference.
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 appellants,
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:
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