Appeal No. 98-2186
Application No. 08/517,946
appellant’s units were due to the claimed features of the
invention and not to other factors like preferential pricing
relative to competing products and substantial advertising.
In view of the foregoing, we are satisfied that when all
the evidence is considered, the totality of the evidence
submitted by appellant cannot be accorded substantial weight,
so that, on balance, the evidence of nonobviousness fails to
outweigh the evidence of obviousness relied upon by this panel
of the Board in our new ground of rejection.
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
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