Appeal No. 2005-0393
Application 09/536,728
(effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz.
Pat. Office 21 (September 7, 2004)), and a remand.
With respect to the former, we point out that 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. . . .
We hold the affirmance in abeyance until the examiner has addressed the issues
set forth in the remand of Rejections III and IV.
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