Appeal No. 2005-0478 Page 8
Application No. 10/064,363
Conclusion
In view of the foregoing discussion, we have sustained the rejection under
35 U.S.C. § 103 of claims 1 and 5-6; we have not sustained the rejection under
35 U.S.C. § 103 of claim 4; and we have entered a new ground of rejection
against claims 1 and 4 under 37 CFR § 41.50(b).
As indicated supra, this decision contains a new ground of rejection
pursuant to 37 CFR § 41.50(b) (effective September 13, 2004, by final rule
notice, 69 Fed. Reg 49960, 50008 (August 12, 2004), 1286 Off. Gaz. Pat. Office
21, 61 (September 7, 2004)). 37 CFR § 41.50(b) provides that, “[a] new ground
of rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 CFR § 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 of rejection to avoid
termination of proceedings (37 CFR § 1.197 (b) (amended effective September
13, 2004)) as to the rejected claims:
(1) Submit an appropriate amendment of the claims so rejected or new
evidence relating to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding will be
remanded to the examiner. . .
(2) Request that the proceeding be reheard under 37 CFR § 41.52 by the
Board upon the same record. . .
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 CFR § 1.136(a)(1)(iv).
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Last modified: November 3, 2007