Appeal No. 1997-3709
Application 08/582,034
757, 9 USPQ2d 1417 (Fed. Cir. 1988), Ryko Manufacturing Co. v.
Nu-Star Inc., 950 F.2d 714, 21 USPQ2d 1053 (Fed. Cir. 1991)
and In re Beattie, 974 F.2d 1309, 1313, 24 USPQ2d 1040, 1043
(Fed. Cir. 1992). We therefore conclude that our new
rejection of claims 7-10 as being unpatentable over Soltis in
view of Wirth is sound.
Summary
The examiner’s rejection of the appealed claims as being
unpatentable over Wirth in view of Herbulot is reversed.
New rejections of claims 3-10 pursuant to our authority
under 37 CFR § 1.196(b) have been entered.
The decision of the examiner is reversed.
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,
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