Appeal 2007-1904
Application 10/790,081
F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989)(“During patent
examination the pending claims must be interpreted as broadly as their terms
reasonably allow.”).
CONCLUSION
For the foregoing reasons, we affirm the Examiner’s decision
rejecting the claims on appeal under 35 U.S.C. § 103. However, pursuant to
37 C.F.R. § 41.50(b)(2005), we denominate our affirmance as including a
new ground of rejection since our reasons for affirming the Examiner’s
rejections are materially different from those proposed by the Examiner.
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960
(August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37
C.F.R. § 41.50(b) provides "[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review."
37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .
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