Appeal No. 2005-0123
Application No. 10/114,759
determination clearly would be within the level of skill of the
skilled artisan. The level of the skilled artisan should not be
underestimated. See In re Sovish, 769 F.2d 738, 743, 226 USPQ
771, 774 (Fed. Cir. 1985). Accordingly, claims 1 through 10
would have been obvious over the teachings of Xu, Simpson, and
appellant's admissions, all taken together.
CONCLUSION
The decision of the examiner rejecting claims 1 through 10
under 35 U.S.C. § 103 is reversed. A new ground of rejection of
claims 1 through 10 under 35 U.S.C § 103 has been added pursuant
to provisions of 37 C.F.R. § 41.50(b).
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b) (effective September 13, 2004, 69 Fed. Reg.
49960 (August 12, 2004), 1286 Off. Gaz. Pat. Office 21
(September 7, 2004)). 37 C.F.R. § 41.50(b) provides "[a] new
ground of rejection pursuant to this paragraph shall not be
considered final for judicial review."
37 C.F.R. § 41.50(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
10
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