FURTHER ORDERED that under 37 CFR § 1.196(b) our new
ground of rejection shall not be considered final for purposes of
judicial review.
FURTHER ORDERED that applicants, WITHIN TWO MONTHS FROM
THE DATE OF ENTRY OF THIS DECISION, must exercise one of the
following two options with respect to the new grounds of
rejection to avoid termination of proceedings (37 CFR § 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.
FURTHER ORDERED that since the appeal was presented on
the basis that all claims stand or fall together, and that we
have decided the appeal on that basis, should applicants elect to
proceed before the examiner on remand [Option (1), supra], then
our affirmance should be construed to be without prejudice to
applicants presenting argument before the examiner maintaining
that any of claims 2 through 16 are separately patentable from
claim 1.
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Last modified: November 3, 2007