Appeal No. 2004-1293
Application No. 09/989,330
as peat, organic polymers, and fibrous materials. (Column 1,
line 5 to column 3, line 51; Examples 1-34.) Thus, we
determine that one of ordinary skill in the art would have found
it prima facie obvious to use substrates including organic
material such as peat, organic polymers, and fibrous materials
(e.g., fiberglas batting) as suggested by Cohen in James in
order to enhance the growth of the live plants in an aquarium.
Time for taking action
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 the
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 (1) 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...
(2) Request that the application be reheard under
37 CFR § 1.197(b) by the Board of Patent Appeals and
Interferences upon the same record...
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