Appeal No. 2000-2146
Application No. 09/197,513
As discussed above, the appealed claim 1 more broadly
recites the configuration of the central rod and the radial fins
which are merely an obvious variation of the invention recited in
claim 1 of Prudhon. Accordingly, claim 1 is rejected under the
judicially created doctrine of obviousness-type double patenting
over Prudhon.
In addition to reversing the Examiner’s decision rejecting
the claims, this decision contains a new ground of rejection
pursuant to 37 CFR § 1.196(b). 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 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. . . .
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