Appeal No. 2002-2030 Page 18
Application No. 09/294,663
the two applications have not been maintained consonant with the respective
restriction requirements. Therefore, rejection of the instant claims for
obviousness-type double patenting is proper.
Summary
We affirm the rejection of claims 1, 6, and 9 for nonenablement and lack of
an adequate written description. We also enter new grounds of rejection of
claims 3, 5-7, 9, 10, 21, and 22 for obviousness-type double patenting. Thus,
claim 20 is not subject to any outstanding rejection.
This decision contains new grounds 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 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. . . .
(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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