Appeal No. 2004-0096 Page 8
Application No. 09/785,273
CONCLUSION
To summarize, the decision of the examiner to reject claims 2 and 3 under 35
U.S.C. § 102(b) is reversed and new rejections of claims 2 and 3 under the first and
second paragraphs of 35 U.S.C. § 112 are entered pursuant to 37 CFR § 1.196(b).
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 ground of rejection to avoid termination of proceedings
(§ 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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