Appeal No. 2005-1180
Application No. 09/791,298
the combination of Peiker and Pickard is reversed. The rejection of claims 24, 25, 29, 30, 43,
44, 48 and 49 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Peiker,
Pickard and Cramer is reversed. The rejection of claims 31-35 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Peiker, Pickard and Sorensen is reversed. The
rejection of claims 36 and 37 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Peiker, Pickard, Sorensen and Cramer is reversed.
In addition to affirming the examiner’s rejection of one or more claims, this decision
contains a remand. 37 CFR § 41.50(e) (effective September 13, 2004, 69 Fed. Reg. 49,960
(Aug. 12, 2004), 1286 Off. Gaz. Pat. & Trademark Office 21 (Sept. 7, 2004)) provides:
Whenever a decision of the Board includes a remand, that decision shall
not be considered final for judicial review. When appropriate, upon conclusion
of proceedings on remand before the examiner, the Board may enter an order
otherwise making its decision final for judicial review.
Regarding any affirmed rejection, 37 CFR § 41.52(a)(1) (2004) provides, “Appellant
may file a single request for rehearing within two months of the date of the original decision of
the Board.”
The effective date of the affirmance is deferred until conclusion of the proceedings
before the examiner unless, as a mere incident to the limited proceedings, the affirmed rejection
is overcome. If the proceedings before the examiner do not result in allowance of the
application, abandonment or a second appeal, this case should be returned to the Board of
Patent Appeals and Interferences for final action on the affirmed rejection(s), including any
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