Appeal No. 2005-2686
Application No. 09/879,823
rejection is based on fundamental fairness to appellants. Since
Von Kohorn is an extremely large reference with several different
embodiments disclosed therein, we agree with appellants that they
had a right in this case to rely on the specific portions of the
reference cited by the examiner. Since we basically agreed with
appellants that some portions of Von Kohorn relied on by the
examiner did not support the examiner’s findings, we agree with
appellants that fundamental fairness requires that we designate
our decision in this case with respect to the anticipation
rejection as a new ground of rejection under 37 CFR § 41.50(b).
Appellants argue that the new portions of Von Kohorn relied
on in the decision on appeal do not support the findings of
anticipation as set forth in the decision [request, pages 10-17].
First, appellants argue that the portions of Von Kohorn cited in
the Board’s decision do not disclose “targeting.” Appellants
support this argument by citing a different portion of Von Kohorn
than the portion cited in the Board’s decision [request, pages
10-14].
We are not persuaded of error by this argument. First,
appellants cite a portion of Von Kohorn which follows the
statement “[i]n accordance with a further aspect of the
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