Appeal 2007-1419
Application 09/854,111
1 The Examiner entered a new ground of rejection in the Examiner’s
2 Answer for claims 1-6 and 12-16 under 35 U.S.C. 102(e) as being
3 anticipated by US Patent No. 6,662,186 to Esquibel. (Answer 2-3).
4 The Examiner properly gave notice of the new ground of rejection
5 (Answer 2-3, 13-14) and obtained approval of the Technology Center
6 Director (Answer 15). See MPEP § 1207.03.
7 In response to a new ground of rejection, Appellants must either file a
8 request to reopen prosecution, 37 C.F.R. § 41.39(a)(2)(b)(1), or a reply,
9 § 41.39(a)(2)(b)(2), to avoid a sua sponte dismissal of the appeal as to the
10 claims subject to the new ground of rejection. In this case, the record before
11 us shows that Appellants have not taken either action.
12 As a result, the appeal with respect to claims 1-6 and 12-16 stands
13 dismissed. The dismissal of the appeal as to claims 1-6 and 12-16 operates
14 as an authorization to cancel such claims and the appeal shall continue as to
15 the remaining claims.
16 Accordingly, the Examiner is required to: (1) Cancel the claims
17 subject to the new ground of rejection; and (2) Notify the Appellants that the
18 appeal as to the claims subject to the new ground of rejection is dismissed
19 and those claims are canceled. Manual of Patent Examining Procedure
20 (MPEP) § 1207.03 (8th ed., Rev. 3, August 2005).
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Last modified: September 9, 2013