Appeal No. 2004-0636
Application No. 09/045,041
38 through 42, and 44 under 35 U.S.C. § 102 is reversed and a new
ground of rejection under 35 U.S.C. § 112, second paragraph, has
been entered.
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b) (effective September 13, 2004, 69 Fed. Reg.
49960 (August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September
7, 2004)). 37 C.F.R. § 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered
final for judicial review."
37 C.F.R. § 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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