Appeal No. 2002-0639 Page 11
Application No. 09/372,602
OTHER ISSUES
In view of our analysis above, the Examiner should re-evaluate the prior art to determine
if claims other than claims 1, 10, 34, and 39 should be rejected under 35 U.S.C. § 103(a) as
unpatentable over Bingham in view of Kozak either alone or in combination with other prior art.
CONCLUSION
To summarize, the decision of the Examiner to reject claims 1-3, 9-16, 18, 19, 23, 26, and
37 under 35 U.S.C. § 102(b) and claims 2-6, 9, 11-21, 23-28, 35-38, 40, and 41 under 35 U.S.C.
§ 103(a) is reversed. We affirm the decision of the Examiner to reject claims 34 and 39 under 35
U.S.C. § 103(a) and extend the rejection to claims 1 and 10. We denominate our affirmance as
involving a new ground of rejection pursuant to 37 CFR § 1.196(b)(2002). Further review of the
claims in view of the prior art is required due to the nature of our affirmance.
In addition to affirming the Examiner’s rejection of one or more claims, this decision
contains a new ground 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 that "[a] new ground of
rejection shall not be considered final for purposes of judicial review."
Regarding any affirmed rejection, 37 CFR § 1.197(b) provides:
(b) Appellants may file a single request for rehearing within two months from the
date of the original decision . . . .
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