Appeal 2006-1989
Application 09/772,278
Patent 5,996,948
DECISION
The decision of the Examiner rejecting claims 1-5 and 7 under
35 U.S.C. § 251 based on recapture is reversed; the decision of the Examiner
rejecting claim 5 under 35 U.S.C. 102(b) is reversed; and the decision of the
Examiner rejecting claims 1 and 2 under 35 U.S.C. § 102(b) is affirmed.
We have entered new grounds of rejection against claims 1-5 and 7
under 37 C.F.R. § 41.50(b) (2005).
37 C.F.R. § 41.50(b) provides that, “new grounds of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 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 grounds of rejection to avoid
termination of proceedings (37 C.F.R. § 1.197 (b) (2005)) as to the rejected
claims:
(1) 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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