Appeal No. 2002-2047 Page 14
Application No. 09/348,400
The rejection of claims 77-80, 90 and 96 as being unpatentable over Robin in
view of Umeda, Heinz and Rosenfeld is not sustained.
The rejection of claim 28 as being unpatentable over Robin in view of Umeda
and Heinz is sustained. However, this is designated to be a new rejection by this panel
of the Board of Patent Appeals and Interferences under 37 CFR 1.196(b).
In view of our action concerning claim 28, 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, “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) Appellant may file a single request for rehearing within two months
from the date of the original decision . . . .
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 (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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