Appeal No. 2000-0949
Application No. 08/721,505
which is variable and not the same as the predetermined or set value. Holdgrafer clearly
teaches the use of a set predetermined value which is not based upon a measured value.
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 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 . . . .
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