Appeal 2007-2613
Application 10/660,239
35 U.S.C. 103 as being unpatentable over Smith in view of Pitzer is
affirmed.
We designate this affirmance as a new ground of rejection under 37 CFR
41.50(b).
In addition to affirming the examiner's rejection(s) of one or more
claims, this decision contains new grounds of rejection pursuant to 37 CFR
§ 41.50(b). 37 CFR § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 CFR § 41.50 (b) also provides that the appellant, 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 . . . .
Should the appellant elect to prosecute further before the examiner
pursuant to 37 CFR § 41.50(b)(1), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejection,
the effective date of the affirmance is deferred until conclusion of the
prosecution before the examiner unless, as a mere incident to the limited
prosecution, the affirmed rejection is overcome.
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