Appeal No. 1997-4272
Application No. 08/429,053
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 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 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 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.
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