Appeal No. 2007-0091
Application No. 09/765,491
and claims 10-12, 18, and 19 as obvious over the prior art. We enter new
grounds of rejection for anticipation and indefiniteness.
Time Period for Response
Regarding the affirmed rejection(s), 37 CFR § 41.52(a)(1) provides
that “Appellant may file a single request for rehearing within two months
from the date of the original decision of the Board.”
In addition to affirming the examiner's rejection(s) of one or more
claims, 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), 1286 Off. Gaz. Pat. Office 21 (September 7, 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. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .
Should the appellant elect to prosecute further before the examiner
pursuant to 37 CFR § 41.50(b)(1), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejection,
the effective date of the affirmance is deferred until conclusion of the
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