Appeal No. 2006-1066 Page 12
Application No. 09/810,109
We affirm the rejection of claims 1, 6, 7, and 9 under 35 U.S.C. § 102 over
Zappla, the rejection of claims 1 and 11 under 35 U.S.C. § 102 over Hata, and the
rejection of claims 1 and 5-17 under 35 U.S.C. § 103. Because our reasoning with
regard to claim 8 differs from that of the examiner, we designate our affirmance of the
rejection of this claim as a new ground of rejection under 37 CFR § 41.50(b) in order to
give Appellant a fair opportunity to respond.
Time Period for Response
Regarding the affirmed rejections, 37 CFR § 41.52(a)(1) provides "Appellant may
file a single request for rehearing within two months from the date of the original
decision of the Board."
In addition to affirming the examiner's rejections of one or more claims, 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 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. . . .
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record. . . .
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