Appeal No. 2007-0172
Application No. 10/461,361
SUMMARY
We affirm the rejection of claims 1, 3, 19 and 20 under 35 U.S.C.
§ 103 and reverse the rejection of claims 4-18 under 35 U.S.C. § 103.
Because our reasoning differs from that of the Examiner, we designate our
affirmance as a new ground of rejection under 37 C.F.R. § 41.50(b), in order
to give Appellant a fair opportunity to respond. No time period for taking
any subsequent action in connection with this appeal may be extended under
37 C.F.R. § 1.136(a).
TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960
(August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37
C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that 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. . . .
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