Appeal 2007-0226
Application 09/823,866
Claims 11-15 stand rejected under 35 U.S.C. § 101 as being directed
to nonstatutory subject matter. This is a new ground of rejection in the
Examiner's Answer.
DISCUSSION
35 U.S.C. § 101: Claims 11-15
The Examiner entered a new ground of rejection of claims 11-15
under 35 U.S.C. § 101 in the Examiner's Answer. A new ground of rejection
is permitted in an examiner's answer. See 37 C.F.R. § 41.39(a)(2); Manual
of Patent Examining Procedure (MPEP) § 1207.03 (8th ed., Rev. 5,
Aug. 2006). The Examiner properly gave notice of the new ground of
rejection (Answer 4, 11-12) and obtained approval of the Technology Center
Director (Answer 12). See MPEP § 1207.03. In response to a new ground
of rejection, an appellant must either file a request to reopen prosecution,
37 C.F.R. § 41.39(a)(2)(b)(1), or a reply, § 41.39(a)(2)(b)(2), to avoid a
sua sponte dismissal of the appeal as to the claims subject to the new ground
of rejection. Appellants have not taken either action. Accordingly, the
rejection of claims 11-15 is affirmed.
35 U.S.C. § 103(a)
Claims 1-4, 6-9, 11-14, 16-19, 21, and 22
Appellants do not argue the separate patentability of the claims.
Therefore, the claims in this group stand or fall together with representative
claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
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