Appeal No. 1998-3074
Application 08/804,850
862, 134 USPQ 292, 295 (CCPA 1962). Note also In re Wilson, 424 F.2d 1382, 1385,
165 USPQ 494, 496 (CCPA 1970).
In summary, we have reversed the art rejection of all claims on appeal, claims
1 through 7 and 19 through 26, under 35 U.S.C. § 103, claims 1 through 7 on the merits
and claims 19 through 26 in a pro forma manner. We have also instituted a rejection of
claims 19 through 26 under the second paragraph of 35 U.S.C. § 112. As such, 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 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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