Appeal No. 2000-1998 Page 2
Application No. 08/828,523
rejection, the rejection of claims 35 and 48-53 has been
withdrawn and a new rejection of claim 45 has been added in the
answer. New grounds of rejection are expressly prohibited in an
examiner’s answer by 37 CFR § 1.193(a)(2). Nevertheless, as
appellant has not objected to the entry of a new ground of
rejection in the answer by petition under 37 CFR § 1.1812, we
shall decide the appeal of the rejection set forth in the
answer.3
BACKGROUND
The appellant’s invention relates to a dental device which
causes a user’s lower jaw to extend forward from its natural
position, thereby reducing snoring (specification, page 4) and to
a method of treating a user’s breathing disorder using such a
device. A copy of the claims under appeal is set forth in the
appendix to the appellant’s brief.
The examiner relied upon the following prior art references
in rejecting the appealed claims:
Kelly 1,146,264 Jul. 13, 1915
2 See Manual of Patent Examining Procedure (MPEP) § 1208.01.
3 In light of our treatment of the rejection, infra, it is apparent that
appellant has not been prejudiced by our review of the new ground of rejection
in the answer.
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