Appeal No. 1997-3137
Application No. 07/978,670
appellant with two options. First, appellant may submit an appropriate amendment of the
claims or a showing of facts relating to the claims and have the matter reconsidered by the
examiner, in which event the application will be remanded to the examiner. Second,
appellant may request that the appeal be reheard by the Board upon the same record. At
page one of the request for rehearing appellant states that he wishes to “be reheard under
37 CFR § 1.197(b) upon the same record, as supplemented by the arguments set forth
herein and as supported by the accompanying declarations of Joseph Hines and Dr.
Douglas Burkett.” Manifestly, the request is improper. In essence, appellant is requesting
that we create a third option under 37 CFR § 1.196(b). We decline to do so.
Since appellant’s submissions have created a new record, we interpret appellant’s
intent is to have the matter reconsidered by the examiner upon the new record.
Accordingly, we remand the application to the examiner to consider appellant’s
submissions and take whatever action is deemed appropriate.
Appellant’s request for rehearing is denied to the extent it asks the merits panel to
review the new ground of rejection in light of the new record. Upon return of the
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