Appeal No. 2000-0064
Application 08/625,241
rationale in support of the rejection and arguments in rebuttal
set forth in the examiner’s answer.
It is our view, after consideration of the record before
us, that the evidence relied upon and the level of skill in the
particular art would not have suggested to one of ordinary skill
in the art the obviousness of the invention as set forth in
claims 19-22 and 31-33. Accordingly, we reverse.
At the outset, we note that appellants have requested
that we remand this appeal to the examiner based on appellants’
view that the examiner’s answer has improperly made a new ground
of rejection [Reply Brief, footnote 1]. To the extent that
appellants’ request asserts that this rejection is not properly
before us, we do not agree. Appellants have raised the question
that the examiner’s answer improperly includes a new ground of
rejection in two separate petitions to the Commissioner and in a
request for remand addressed to the Board. The two petitions and
the request for remand have all been decided on the merits
adversely to appellants. Thus, the Commissioner and the Chief
Administrative Patent Judge have ruled that the examiner’s answer
does not set forth a new ground of rejection in violation of 37
CFR § 1.193(a)(2).
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