Appeal No. 2000-0782
Application No. 08/549,322
that presented by the examiner, we denominate this “affirmance” of
the examiner’s rejection as a new ground of rejection under 37 CFR
§ 1.196(b).
Appellants’ remaining arguments (Brief, pages 4-14; Reply
Brief, pages 2-4 and 6-12; and Appendix 2, the Janssens Declaration
under 37 CFR § 1.132) are deemed moot in view of the new ground of
rejection above.
This decision contains a new ground of rejection pursuant to
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 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. . . .
(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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