Appeal 2007-1098
Application 10/026,059
1 CONCLUSION
2 The rejection of claims 1, 3, 4, 6, 12, and 13 under 35 U.S.C. § 103 as
3 unpatentable over Luce is reversed.
4 The rejection of claim 6 under 35 U.S.C. § 103 as unpatentable over Luce
5 and Khan is reversed.
6 The rejection of claims 14, 15, 17, 18, and 20 as unpatentable over Luce and
7 Kirkpatrick is reversed.
8 Claim 1 is herein rejected under 35 U.S.C. § 102(b) as being anticipated by
9 Luce.
10 Claim 1 is herein alternatively rejected under 35 U.S.C. § 103 as
11 unpatentable over Luce.
12 We further recommend that the Examiner again consider the patentability of
13 applicants’ claims 3, 4, 6, 12, 13, 14, 17, 18, and 20 over existing and/or any new
14 prior art references in light of the new grounds of rejection of claim 1.
15 This decision contains a new ground of rejection pursuant to 37 C.F.R.
16 § 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004),
17 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37 C.F.R. § 41.50(b) provides
18 "[a] new ground of rejection pursuant to this paragraph shall not be considered
19 final for judicial review."
20 37 C.F.R. § 41.50(b) also provides that the appellant, WITHIN TWO
21 MONTHS FROM THE DATE OF THE DECISION, must exercise one of the
22 following two options with respect to the new ground of rejection to avoid
23 termination of the appeal as to the rejected claims:
24 (1) Reopen prosecution. Submit an appropriate amendment of
25 the claims so rejected or new evidence relating to the claims so
26 rejected, or both, and have the matter reconsidered by the examiner, in
27 which event the proceeding will be remanded to the examiner. . . .
11
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