Appeal No. 2000-1349
Application No. 08/475,026
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) Appellant 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 appellant,
WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must
exercise one of the following two options with respect to
the new grounds 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 appellant 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 rejections,
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
rejections are overcome.
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