Appeal 2007-1928
Application 10/163,282
In addition to affirming the Examiner’s rejection(s) of one or more claims,
this opinion contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b)
(effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off.
Gaz. Pat. Office 21 (September 7, 2004)). 37 C.F.R. § 41.50(b) provides “[a] new
ground of rejection pursuant to this paragraph shall not be considered final for
judicial review.”
37 C.F.R. § 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 C.F.R. § 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
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