Appeal No. 2006-1296 Page 7
Application No. 10/759,873
Regarding the affirmed rejection(s), 37 CFR § 41.52(a)(1) provides "[a]ppellant may file
a single request for rehearing within two months from the date of the original decision of the
Board."
In addition to affirming the examiner's rejection(s) of one or more claims, this decision
contains a new ground of rejection pursuant to 37 CFR § 41.50(b) (effective September 13,
2004, 69 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, abandonment or a second appeal, this case should be returned to
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Last modified: November 3, 2007