Appeal No. 2006-2627 Page 48
Application No. 09/947,833
35 U.S.C. § 103(a). As set forth above, claims 2-22, 24 and 26 fall together with
claims 1, 23 and 25 respectively.
While the foregoing analysis may be different from that set forth in the Answer,
I note that appeal to the Board is from a decision of the examiner, not from the reasons
upon which such decision is based. Ex parte Maas, 9 USPQ2d 1746, 1748
(BPAI 1987). Nevertheless, since the rationale differs from that of the examiner,
appellants should be provided with a fair and full opportunity to respond. Therefore,
the affirmance should be designated as a new ground of rejection under 37 C.F.R.
§ 41.50(b), and appellants provided with an appropriate time period to respond
according to the Rule.
)
) BOARD OF PATENT
)
Donald E. Adams ) APPEALS AND
Administrative Patent Judge )
) INTERFERENCES
)
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