Appeal No. 2004-2299
Application No. 09/244,006
(6) claims 41-45, 57-61 and 66-67 stand rejected under section
103(a) as unpatentable over Goodman (Answer, page 8).2
Upon a careful review of the claims on appeal, the
specification, the applied prior art, as well as the arguments by
the appellant in the Brief, Reply Brief, and Supplemental Brief,
and the examiner in the Answer and the Supplemental Answer, we
reverse all of the rejections on appeal based on section 102(b).
Although we agree with the examiner’s ultimate conclusion of
obviousness, we do not agree with the reasoning set forth by the
examiner in support of these rejections. Therefore we also reverse
the rejections on appeal based on section 103(a). Accordingly, the
decision of the examiner is reversed. Since we present new
reasoning and case law in support of a rejection of all the claims
on appeal under section 103(a) over Goodman, and appellant has not
had the opportunity to respond to this reasoning and case law, we
enter this rejection as a new ground of rejection under the
provisions of 37 CFR § 41.50(b)(effective Sep. 13, 2004; 69 Fed.
Reg. 49960 (Aug. 12, 2004); 1286 Off. Gaz. Pat. Office 21 (Sep. 7,
2The examiner has withdrawn the rejection of claim 58 under
the second paragraph of section 112 as stated in the final Office
action in view of the entry of the amendment filed with
appellant’s Brief (see the Remand to the Examiner, Paper No. 24,
pages 1-2, and the Supplemental Answer, Paper No. 26, page 2).
4
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