Appeal No. 2004-0389 Page 10
Application No. 09/853,339
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 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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