Appeal No. 1999-0090
Application 08/239,700
rejection of claims 4 to 6 under § 103 will not be sustained. This action is procedural in nature and
should not be taken as an indication that, if the § 112 rejection is overcome, claims 4 to 6 would
necessarily be patentable over the applied and/or other prior art.
Conclusion
The examiner's decision to reject claims 1 to 6 is reversed. Claims 4 to 6 are rejected pursuant
to 37 C.F.R. § 1.196(b).
This decision contains a new ground of rejection pursuant to 37 C.F.R.
§ 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 C.F.R.
§ 1.196(b) provides that, “A new ground of rejection shall not be considered final for purposes of
judicial review.”
37 C.F.R. § 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 (§ 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. . . .
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