Appeal No. 2003-1817 Page 8
Application No. 09/501,714
basis of Hillier accession N933160. Claims 55 and 56 further require that the probe
comprise either at least 30 or 60 contiguous nucleotides. It also appears that the
polynucleotide of Hillier N933160 contains stretches of at least 30 or 60 contiguous
nucleotides as required by claims 55 and 56. See sequence comparison us-09-501-
714-2.rst, July 1, 2000, page 6. Thus, claims 55 and 56 are rejected under this section
of the statute for the reasons set forth above in regard to the extant obviousness
rejection.
Time Period for Response
In addition to affirming the examiner's rejection of one or more claims, this
decision contains a new ground of rejection pursuant to 37 CFR § 1.196(b). 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. . . .
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