Appeal No. 2006-1402
Application No. 10/788,543
In summary: we have sustained the rejection of claims 21, 24, 26 through 28
and 31 under 35 U.S.C. § 103(a). Therefore, the decision of the examiner is
affirmed.
However, since our rationale used to sustain the rejection is considerably
different than that of the examiner, we feel that the thrust of the rejection has
been altered to such an extent that we are compelled to denominate the affirmance
of the rejection as being a NEW GROUND OF REJECTION under 37 CFR
§ 41.50(b).
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).
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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