Appeal No. 2002-0693
Application No. 09/073,686
require real, experimental comparative evidence, not conjecture
and attorney argument.
Consequently, we agree that there is a prima facie case of
obviousness. We shall sustain this rejection, but note that the
reasoning underlying the rejection by us differs substantially
from that used by the examiner. Accordingly to that extent we
denominate this a new ground of rejection pursuant to the
provisions of 37 CFR § 1.196(b).
Summary
The rejection of claims 1-7, 9-12, 14-16, 18-21, 23 and 24
under 35 U.S.C. § 103(a) as being unpatentable over Valaitis and
Davis is sustained.
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.”
37 CFR § 1.196(b) also provides that the appellants, 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:
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