Appeal No. 2002-0639 Page 12
Application No. 09/372,602
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 considered 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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