Appeal No. 1998-2383 Page 12
Application No. 08/116,355
CONCLUSION
To summarize, the decision of the examiner to reject claims 17, 19, 22, 28-30, 32-48,
50, 51 and 56-58 under 35 U.S.C. § 103 is affirmed as to claims 35-38 and reversed as to
claims 17, 19, 22, 28-30, 32-34, 39-48, 50, 51 and 56-58. Additionally, the application is
remanded to the examiner for consideration of the patentability of at least claims 41 and 46 in
light of the above discussion.
In addition to affirming the examiner's rejection of one or more claims, this decision
contains a remand. 37 CFR § 1.196(e) provides that
Whenever a decision of the Board of Patent Appeals and Interferences includes or
allows a remand, that decision shall not be considered a final decision. When
appropriate, upon conclusion of proceedings on remand before the examiner, the Board
of Patent Appeals and Interferences may enter an order otherwise making its decision
final.
Regarding any affirmed rejection, 37 CFR § 1.197(b) provides:
(b) Appellant may file a single request for rehearing within two months from the
date of the original decision . . . .
The effective date of the affirmance is deferred until conclusion of the proceedings
before the examiner unless, as a mere incident to the limited proceedings, the affirmed rejection
is overcome. If the proceedings before the examiner do not result in allowance of the
application, abandonment or a second appeal, this case should be returned to the Board of
Patent Appeals and Interferences for final action on the affirmed rejections, including any
timely request for rehearing thereof.
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