Ex Parte Rastegar - Page 8

          Appeal Number: 2006-0974                                                    
          Application Number: 10/244,336                                              

          Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz. Pat. Office 21            
          (September 7, 2004)).  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 . . .                                                           
               Should the appellant elect to prosecute further before the             
          examiner pursuant to 37 CFR § 41.50(b)(1), in order to preserve             
          the right to seek review under 35 U.S.C. §§ 141 or 145 with                 
          respect to the affirmed rejection, the effective date of the                
          affirmance is deferred until conclusion of the prosecution                  
          before the examiner unless, as a mere incident to the limited               
          prosecution, the affirmed rejection is overcome.                            
               If the appellant elects prosecution before the examiner                
          and this does not result in allowance of the application,                   

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