Appeal 2006-1199 Application 10/693,045 The Appellants appear to assert that the use of the sensor feed tube containing a sensor taught in Fradeneck in a metal making vessel is disadvantageous. (See Spec. 2.) However, this assertion is not supported by any objective evidence. In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972). Moreover, claims 1, 3, 10, and 12 on appeal do not exclude such sensor means. In re Self, 671 F.2d 1344, 1348, 213 USPQ 1, 5 (CCPA 1982). In view of the foregoing, we determine that Fradeneck alone would have rendered the claimed subject matter obvious to one of ordinary skill in the art. Accordingly, we affirm the Examiner’s decision rejecting claims 1 through 23 under 35 U.S.C. § 103. However, since our reasons for affirmance are materially different from those set forth in the Answer, we denominate our affirmance as including a new ground of rejection against claims 1 through 23 pursuant to 37 C.F.R. § 41.50(b)(2004). V. CONCLUSION The decision of the Examiner is affirmed. However, our affirmance is treated as a new ground of rejection against claims 1 through 23. This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37 C.F.R. § 41.50(b) provides "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." 5Page: Previous 1 2 3 4 5 6 NextLast modified: November 3, 2007