Appeal No. 2004-0659
Application No. 09/111,978
D. OPTIONS FOR FURTHER PROCEEDINGS
1. We recognize that our opinion (1) might be viewed as discussing
points not previously brought out in the record and (2) citing Federal Circuit opinions
based on Federal Circuit decisions entered after appellant filed the appeal and that our
original decision has been sufficiently modified on rehearing so as to become, in effect, a
new decision. We thereby designate this as a new decision.
2. We also recognize that the appeal involves a reissue application
which has been pending for some time. Cf. Pritchard v. Loughlin, 361 F.2d 483, 487,
149 USPQ 841, 844 (CCPA 1966) (proceedings involving reissue should be handled
expeditiously inasmuch as term of reissue patent is running).
3. Accordingly, in an attempt to minimize any prejudice to appellant,
we exercise our discretion by authorizing applicant to proceed under any one of the
following options, the choice of the option being up to appellant.
(1) Option 1: Appellant can accept our decision as final, in
which case the appeal would be concluded.
(2) Option 2: Within two (2) months of the date of this
decision, appellant may file a request for rehearing. 37 CFR § 41.52(a)(1) (2005).
(3) Option 3: Appellant may treat our decision as a final
decision and seek judicial review within the time set out in 37 CFR § 1.304(a)(1) (2005).
4. The decision of the examiner rejecting claims 30 through 85
under 35 U.S.C. § 251 is affirmed.
No time period for taking any subsequent action in connection with this appeal
may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED
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