Appeal No. 2000-1087
Application No. 08/976,102
If the declaration is not sufficient to rebut the prima facie case,
the examiner is to enter a new ground of rejection at least against
claim 21, if not against all the appealed claims. In setting forth
the above-mentioned new ground of rejection, the examiner is
reminded to explain why the declaration of record is not sufficient
to rebut the prima facie case established by the combined teachings
of Hembling and Chen. Should the examiner enter any new ground of
rejection against any or all the claims on appeal, the examiner
must reopen the prosecution of this application.
In view of the foregoing, we reverse the examiner’s decision
rejecting all the appealed claims under 35 U.S.C. § 103 and remand
the application to the examiner’s jurisdiction to address the
issues raised by the combined disclosures of Hembling and Chen
consistent with the instruction provided supra.
This application, by virtue of its “special”, status, requires
immediate action, see MPEP & 708.01 (8th ed., Aug. 2001), item (D).
It is important that the Board of Patent Appeals and Interferences
be promptly informed of any action affecting the appeal in this
case.
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