Appeal No. 2006-2451 Page 10
Application No. 09/988,150
are insufficient was not previously identified by the Examiner, we designate this a new
ground of rejection to afford Appellants the opportunity to respond. In re Kumar, 418
F.3d 1361, 1367, 76 USPQ2d 1048, 1051 (Fed. Cir. 2005).
No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
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. . . .
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record. . . .
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