Appeal No. 1998-0607 Page 15
Application No. 08/506,857
CONCLUSION
To summarize, the decision of the examiner to reject claims 1-5 under 35 U.S.C.
§ 112, second paragraph, is affirmed as to claims 4 and 5 but reversed as to claims 1-3. The
examiner's decision to reject claims 4 and 5 under 35 U.S.C. § 112, first paragraph,
claims 1-5 under 35 U.S.C. § 103 as being unpatentable over Eustache in view of Miller and
claims 1-3 as being unpatentable over Eustache in view of Charles is reversed. We have
designated our affirmance of the rejection of claims 4 and 5 under 35 U.S.C. § 112, second
paragraph, as a new ground of rejection pursuant to 37 CFR § 1.196(b).
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. 53131, 53197
(Oct. 10, 1997), 1203 Off. Gaz. Pat. 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 (§ 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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