Appeal No. 2007-0111
Reexamination 90/006,297
1 Further, pursuant to our authority under 37 CFR § 41.50(b), we entered a new
2 ground of rejection against claims 1-52 under 35 U.S.C. §§ 102(b) and 103(a).
3 (March 30, 2005 Decision; Paper 26.) Because our decision included new grounds
4 of rejection, it was not “considered final for judicial review.” See 37 CFR §
5 41.50(b). The patent owner could have, but did not, seek an immediate rehearing
6 of our decision pursuant to 37 CFR § 41.50(b)(2) in order to expedite judicial
7 review of the affirmed double patenting rejections and new grounds of rejection.
8 Instead, the patent owner reopened prosecution with respect to the new grounds of
9 rejection pursuant to 37 CFR § 41.50(b)(1), thus again substantially affecting the
10 rate and time of prosecution.
11 On reexamination, the examiner determined that the patent owner’s newly
12 submitted evidence was insufficient to overcome the new grounds of rejection and
13 entered a final rejection against all the claims. (Final Office action mailed August
14 26, 2005.) The patent owner then appealed for a second time. (Amended appeal
15 brief filed on February 23, 2006.) The proceeding is now ready for the Board’s
16 second decision on appeal.
17
18 The Rejections To Be Reviewed in This Appeal
19 In this reexamination, the examiner rejected the appealed claims as follows
20 (examiner’s answer mailed on March 14, 2006):
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