Appeal No. 2004-2210 Page 10
Application No. 09/374,117
CONCLUSION
To summarize, the decision of the Examiner to reject claims 26-29 and 32 under 35
U.S.C. § 102(e) is reversed on procedural grounds and a new rejection under 35 U.S.C. § 112,
¶ 2 entered.
This decision contains a new ground of rejection pursuant to 37 CFR § 41.50(b)
(effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz. Pat.
Office 21 (September 7, 2004)). 37 CFR § 41.50(b) provides "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
37 CFR § 41.50(b) also provides that the 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. . . .
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