Appeal No. 1998-0762
Application No. 08/379,576
patenting over claims 1 through 5 and 8 through 23 of
Application 08/379,577 is moot; and
6) The application is remanded to the examiner to review the
content of the prior art, U.S. Patent 3,929,678, cited at page
10 of the specification and determine whether this patent,
together with Dany ‘895, Painter and Hartman, affects the
patentability of the subject matter recited in claims 6
through 8.
Accordingly, the decision of the examiner is affirmed-in-
part and the application is remanded to the examiner for
appropriate action consistent with the above instruction.
With respect to our affirmance, it is denominated as including
new grounds of rejection in accordance with 37 CFR § 1.196(b)
since it relies on rationale and evidence materially different
from those proffered by the examiner. In the event of further
prosecution, the examiner should refer to appellants’
admission relied upon by the Board, but not Dany ‘415 (not
relied upon by the Board), in the statement of rejections.
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
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