Appeal No. 2003-1349 Page 9
Application No. 09/768,969
Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982); In re Pearson, 494
F.2d 1399, 1402, 181 USPQ 641, 644 (CCPA 1974).
Inasmuch as the basic thrust of our affirmance of the 35 U.S.C. § 103 rejection
of claim 9 differs from the rationale advanced by the examiner for the rejection, we
hereby designate the affirmance to be a new ground of rejection pursuant to 37 CFR
§ 1.196(b) to allow the appellant a fair opportunity to react thereto (see In re Kronig,
539 F.2d 1300, 1302-03, 190 USPQ 425, 426-27 (CCPA 1976)).
For the reasons set forth above, the decision of the examiner to reject claim 9
under 35 U.S.C. § 103 as being unpatentable over Bulzomi in view of Oatman or Latzke
is affirmed, with the affirmance constituting a new ground of rejection under 37 CFR
§ 1.196(b).
Claims 10 to 13 and 15
The appellant has grouped claims 9 to 13 and 15 as standing or falling together.3
Thereby, in accordance with 37 CFR § 1.192(c)(7), claims 10 to 13 and 15 fall with
claim 9. Thus, it follows that the decision of the examiner to reject claims 10 to 13 and
15 under 35 U.S.C. § 103 as being unpatentable over Bulzomi in view of Oatman or
3 See page 3 of the appellant's brief.
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