Appeal No. 2001-1360
Application 09/290,056
1997)). 37 CFR § 1.196(b) provides, “A new ground of rejection
shall not be considered final for purposes of judicial review.”
Regarding any affirmed rejection, 37 CFR § 1.197(b)
provides:
(b) Appellants may file a single request for
rehearing within two months from the date of the
original decision . . . .
37 CFR § 1.196(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 proceedings (37 CFR
§ 1.197(c)) as to the rejected claims:
(1) Submit an appropriate amendment of the
claims so rejected or a showing of facts relating to
the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the
application will be remanded to the examiner. . . .
(2) Request that the application be reheard
under § 1.197(b) by the Board of Patent Appeals and
Interferences upon the same record. . . .
Should the appellants elect to prosecute further before
the Primary Examiner pursuant to 37 CFR § 1.196(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
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