Appeal No. 2001-0421
Application 08/926,835
subsequent application of the prior art. We did not create this
state of affairs, appellants and the examiner did. Since the
claims can still be amended, we believe the actions we take today
are entirely appropriate and proper and represent the most
expeditious way to achieve a prompt resolution of the
patentability issues presented in this appeal.
TIME PERIOD FOR RESPONSE
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 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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