Appeal No. 2005-0826
Application No. 09/989,563
On this record, we conclude there is no adequate written description for the
subject matter of claims 15 and 16, and further that the claims contain subject matter
that was not described in the specification in such a way as to enable one skilled in the
art to which it pertains, or with which it is most nearly connected, to make and/or use the
invention.
CONCLUSION
The rejection of claims 1-16 and 25 under 35 U.S.C. § 103 is affirmed.
New rejections of claims 15 and 16 under 35 U.S.C. § 112, first paragraph, for
failure to comply with the written description requirement and failure to comply with the
enablement requirement, are set forth herein.
This decision contains a new ground of rejection pursuant to 37 CFR § 41.50(b)
(2005). 37 CFR § 41.50(b) provides “[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 the appeal as to the
rejected claims:
(1) Reopen prosecution. 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. . . .
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