Appeal No. 2001-2168
Application No. 09/083,307
over Lentz in view of Wolpe is affirmed, and new grounds of
rejection of claims have been entered against claims 10
through 15, 17, 21 and 23 under 37 CFR § 1.196(b). Since
our rationale supporting the examiner’s § 103 rejections
differs from the examiner’s position, we herewith designate
our affirmance of all of the examiner’s rejections as new
grounds of rejection under 37 CFR § 1.196(b).
This decision contains new grounds of rejection
pursuant to 37 CFR § 1.196(b) (amended effective Dec. 1,
1997, by final rule notice, 62 Fed. Reg. 53,131, 53,197
(Oct. 10, 1997), 1203 Off. Gaz. Pat. & Trademark Office 63,
122 (Oct. 21, 1997)). 37 CFR § 1.196(b) provides, "[a] new
grounds 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 . . . .
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