Appeal 2007-2173
Application 09/682,701
CONCLUSIONS OF LAW
We conclude that we are unable to address the merits of the Examiner’s
rejection of claims 1-16 and 19-23 under 35 U.S.C. § 103(a) because it would
require us to resort to considerable speculation and conjecture as to the scope of
the claims on appeal.
DECISION
The decision of the Examiner to reject claims 1-16 and 19-23 is reversed.
We enter a new ground of rejection of claims 1-16 and 19-23 under 35 U.S.C.
§ 112, second paragraph, pursuant to our authority under 37 C.F.R. § 41.50(b).
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 Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of the
following two options with respect to the new grounds 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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