Ex Parte Robins et al - Page 5



             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."                                                                       




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