Appeal No. 2007-0332 Application No. 10/316,312 received on Aug. 26, 2005. We note that the Final Rejection (mailed Nov. 23, 2005) fails to address new claims 27-30 on the merits. In the Answer, the Examiner asserts that claims 27-30 were, in fact, examined, and the omission in the Final Rejection was the inadvertent result of a typographical error (Answer 8). We find no support in the record that the claims were examined. We find before us new grounds of rejection for claims 27-30, set forth for the first time in the Examiner’s Answer. Specifically, the Examiner has set forth new grounds of rejection (in the Answer) for claims 27-30 as being anticipated by Chipman, and claims 27 and 28 as being anticipated by Bailey. Appellants have anticipated the new grounds of rejection in the Brief by indicating that any rejection of claims 27-30 is improper and should be reversed (Br. 4). Because Appellants have not had an opportunity to traverse the new grounds of rejection on the merits, we pro forma reverse the Examiner’s rejection of claims 27-30. NEW GROUNDS OF REJECTION Pursuant to our authority under 37 C.F.R. § 41.50(b), we have sua sponte set forth new grounds of rejection for independent claim 1. The following is a quotation of the appropriate paragraphs of 35 U.S.C. § 102 that form the basis for the rejections under this section made in this Decision: A person shall be entitled to a patent unless – (e) the invention was described in (1) an application for patent, published under section 122(b), by another filed in the United States 9Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: September 9, 2013