Appeal No. 2003-1554 Page 7
Application No. 09/552,063
644 (CCPA 1974). Thus, we sustain the examiner's rejection of appealed claim 1 under
35 U.S.C. § 103. As is apparent from our discussion above, however, our rationale in
affirming this rejection differs substantially from the examiner’s stated rationale in
rejecting claim 1. We thus denominate our affirmance of this rejection as a new ground
of rejection under 37 CFR § 1.196(b) in order to give appellant an opportunity to
respond thereto.
CONCLUSION
To summarize, the decision of the examiner to reject claims 1-19 under 35
U.S.C. § 103 is affirmed as to claim 1 and reversed as to claims 2-19. The affirmance
of the decision to reject claim 1 is denominated as a new ground of rejection pursuant
to 37 CFR § 1.196(b) for the reasons discussed above.
This decision contains a new ground of rejection pursuant to 37 CFR § 1.196(b),
which 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 ground of rejection to avoid termination of proceedings
(§ 1.197(c)) as to the rejected claims:
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