Appeal No. 2006-0533
Application 09/838,420
within 37 CFR § 41.50(b) to all claims on appeal, claims 1
through 11. We have pro forma reversed the rejection of claims 1
through 11 under 35 U.S.C. § 103. Therefore, the decision of the
examiner is affirmed-in-part.
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 that "[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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