Appeal No. 2006-1603
Application No. 10/646,675
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(e) provides
that
[w]henever a decision of the Board includes a remand, that decision shall
not be considered final for judicial review. When appropriate, upon
conclusion of proceedings on remand before the examiner, the Board may
enter an order otherwise making its decision 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. . . .
The effective date of the affirmance is deferred until conclusion of the
proceedings before the examiner unless, as a mere incident to the limited proceedings,
the affirmed rejection is overcome. If the proceedings before the examiner do not result
in allowance of the application, abandonment or a second appeal, this case should be
returned to the Board of Patent Appeals and Interferences for final action on the
affirmed rejections, including any timely request for rehearing thereof.
No time period for taking any subsequent action in connection with this appeal may
be extended under 37 CFR § 103 1.136(a)(1)(vi).
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