Appeal No. 2002-1025 Page 11
Application No. 09/454,354
Regarding any affirmed rejection, 37 CFR § 1.197(b) provides:
(b) Appellants 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 appellants, 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 appellants 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 appellants elect 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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