Appeal 2006-2228
Application 10/231,678
CONCLUSION OF LAW
(1) Appellant has failed to establish that the Examiner erred in
rejecting claims 35, 37, and 38 as failing to recite statutory subject matter
under 35 U.S.C. § 101.
(2) Claims 35, 37, and 38 are not patentable.
DECISION
In light of the foregoing, Appellant’s request is granted to the extent
of reconsidering and modifying our decision with respect to our rationale for
affirming the Examiner’s rejection of claims 35, 37, and 38.
We recognize that this opinion significantly modifies the rationale for
affirming the Examiner’s rejection. Accordingly, in an attempt to minimize
any prejudice to applicant, we exercise our discretion by authorizing
applicant to proceed under any one of the following options, the choice of
the option being up to applicant.
Option 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. 37 C.F.R.
§ 41.50(b)(1).
Option 2: Within two (2) months of the date of this decision,
Appellant may file a request for rehearing. 37 C.F.R. § 41.50(b)(2).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
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