Appeal No. 2004-1302
Application No. 09/789,757
37 CFR § 41.50(b) also provides that 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 the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded to the
examiner . . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record . . . .
Should appellant elect to prosecute further before the
examiner pursuant to 37 CFR § 41.50(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 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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