Appeal No. 2002-0928
Application 09/315,251
U.S.C. § 154, the policy rationale for the judicially created
doctrine of obviousness-type double patenting remains intact.
Accordingly, appellants must file the requisite terminal disclaimer
of their patent in order to overcome this rejection.
SUMMARY
The rejection of claims 1 through 5 and 8 through 12 under 35
U.S.C. § 103, is reversed. We have made a new ground of rejection
under 37 C.F.R. § 1.196(b).
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 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 C.F.R. §
1.196(b) provides that, "A new ground of rejection shall not be
considered final for purposes of judicial review."
37 C.F.R. § 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 ground of rejection
to avoid termination of proceedings (§ 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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