Appeal 2007-3935
Application 10/625,244
15-18. See Perricone, 432 F.3d at 1377 (finding anticipation even when a
prior art range “does not exactly correspond to [the] claimed range,” but the
prior art “range entirely encompasses, and does not significantly deviate
from, [the] claimed ranges.”).
CONCLUSION
In summary, we find that Runge anticipates the subject matter of
claims 10-18 and 21-26, thus the rejection is affirmed. Because our
reasoning differs from that of the Examiner, we designate our affirmance as
a new ground of rejection.
Time Period for Response
This decision contains a new ground of rejection pursuant to 37 CFR
§ 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12,
2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 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. . . .
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