Appeal No. 2006-1057
Application No. 10/005,994
In view of the above, we find the examiner has provided sufficient evidence to
support a prima facie case of obviousness of claims 1 and 13 which remains unrebutted
by appellant. Remaining claims fall with independent claims 1 and 13.
CONCLUSION
The rejection of claims 1-4, 6-12 and 18 under 35 U.S.C. § 103(a) over Noll in
view of Guck as evidenced by McAtee is affirmed. The rejection of claim 13 in further
view of Kelly is also affirmed. As our analysis varies from that of the examiner, we
designate our decision in this appeal as a new ground of rejection.
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 C.F.R. ' 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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