Appeal No. 2003-1076
Application No. 09/779,873
specification) in view of Kellett, Battice et al. and Gettings et al. Having again reviewed the
entire record in light of the arguments raised in appellant’s Request for Rehearing, paper no. 21,
received December 3, 2003, we remain of the opinion that the examiner’s rejection is proper.
Accordingly, appellant’s request is denied for the reasons’ discussed in greater detail below.
Appellant first argues that the Board’s decision applies new grounds of rejection as to
claims 1 and 15 and request that the Board issue a revised decision identifying the rejections as
new grounds of rejection under 37 CFR § 1.196(b), to allow appellant an opportunity to respond
thereto. See Request for Rehearing, pages 3-5.
37 CFR § 1.1.96(b) provides that in those cases where the Board has “knowledge of any
grounds not involved in the appeal for rejecting any pending claim, it may include in the decision
a statement to that affect with it’s reasons for so holding for periods....” (emphasis added.)
Thus, the Board is not required, and in this case, has chosen not to include new grounds of
rejection under 35 U.S.C. § 102. Moreover, contrary to appellant’s assertion, the decision clearly
states that we are in agreement with the examiner’s findings and conclusions of obviousness as to
claims 1 and 15. See, e.g., Decision, pages 6 and 9 (“we are in agreement with the examiner”).
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