Ex parte MARTIN - Page 9




          Appeal No. 1999-1057                                                        
          Application No. 08/848,719                                                  


               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. and 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                    
          grounds 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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