Appeal No. 2005-1268
Application No. 10/044,728
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.
If the appellant elects prosecution before the examiner and this does not result in
allowance of the application, abandonment or a second appeal, this case should be
returned to the Board of Patent Appeals and Interferences for final action on the
affirmed rejection, including any timely request for rehearing thereof.
Accordingly, the examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a) (1) (iv).
AFFIRMED-IN-PART
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