Appeal No. 2006-0703 Page 8
Application No. 09/268,437
CONCLUSION
Because the examiner has failed to set forth a prima facie case that claims
1-5 and 12 are anticipated by the Henkins reference, the rejection as to those
claims is reversed.
The rejection of claim 11 as being anticipated by Cozzette, however, is
affirmed. Since our reasoning with respect to the obviousness rejection differs
from that of the examiner, we designate our affirmance of that rejection as a new
ground of rejection under 37 CFR § 41.50(b). See In re Kronig, 539 F.2d 1300,
1302-03, 190 USPQ 425, 426-27 (CCPA 1976).
TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to 37 CFR §
41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004),
1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 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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