Appeal No. 2004-1714
Application No. 09/897,826
rehearing, counsel for appellant filed on November 7, 2005, among
other documents, a Request for Continued Examination (RCE) under
37 CFR § 1.114.
According to the notice entitled “Request for Continued
Examination Practice and Changes to Provisional Application
Practice,” 65 Fed. Reg. 50092, 50095 (Aug. 16, 2000) and the
provisions of 37 CFR § 1.114(d), a request for continued
examination under 37 CFR § 1.114 filed after appeal has been
taken, but prior to a decision on the appeal, “will be treated as
a request to withdraw the appeal and to reopen prosecution of the
application before the examiner.” Inasmuch as the November 7,
2005 filing date of the RCE is prior to our November 30, 2005
response to the request for rehearing, we hereby find that the
Board did not make a proper final “decision on the appeal,” and
that the RCE is a proper “request to withdraw the appeal and to
reopen prosecution of the application before the examiner.”
Accordingly, our premature decision in this application is
vacated, and the appeal in this application is dismissed in favor
of the RCE.
The application is being returned to the examiner for any
further action as may be appropriate.
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