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
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