Appeal No. 2002-1397
Application No. 09/310,800
planar substrate.” The invention of claim 19 thus appears to be defined by one or two
thin film layers, with at least one layer deposited on a substantially planar surface of a
substrate and at least one layer formed on a substantially planar substrate; i.e., one or
two layers on one or two substrates. The recitation of similar structures in claims 1 and
11, without antecedent reference with respect to one or the other of the similar
structures, renders the subject matter of claim 19 indeterminate.
CONCLUSION
The rejection of claims 1, 3-6, 8-10, and 19-29 under 35 U.S.C. § 102 is
reversed.
Claim 19 is newly rejected by us under 35 U.S.C. § 112, second paragraph.
This decision contains a new ground 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 claim:
(1) Submit an appropriate amendment of the claim so rejected or a
showing of facts relating to the claim so rejected, or both, and have the
matter reconsidered by the examiner, in which event the application will be
remanded to the examiner
. . . .
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