Appeal No. 2006-2433
Application 10/061,492 Deleted: 10,
We find no basis in the record on which Appellants could have
reasonably foreseen the grounds of rejection applied to claim 48 in the
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Answer. Indeed, the Examiner did not point out such grounds of rejection in
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the advisory action. See MPEP § 1207.03, III. Situations That Are Not
Considered As New Grounds of Rejection (8th ed., Rev. 3, August 2005).
Furthermore, the Examiner also did not point out the additional grounds of
rejection in the Answer by finding that Appellants’ statement of the grounds
of rejection to be reviewed on appeal was incorrect and by designating the
grounds as new grounds of rejection. See MPEP §§ 1207.02 and 1207.03,
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I. Requirements For A New Ground Of Rejection (8th ed., Rev. 3, August
2005).
Accordingly, the issues in this appeal have been incompletely
prosecuted and briefed, and thus, the record is incomplete for purposes of
appeal. Therefore, the Examiner is required to take appropriate action
consistent with current examining practice and procedure to properly bring
the grounds of rejection of appealed claim 48 to the attention of Appellants,
and complete the prosecution of these grounds of rejection with a view
toward placing this application in condition for decision on appeal with
respect to the issues presented.
This remand is made for the purpose of directing the Examiner to
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further consider the grounds of rejection. Accordingly, if the Examiner
submits a Supplemental Answer to the Board in response to this remand,
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“the appellant must within two months from the date of the supplemental
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examiner’s answer exercise one of” the two options set forth in 37 CFR Deleted: e
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§41.50(a)(2) (2005), “in order to avoid sua sponte dismissal of the appeal as
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