Ex Parte Plourde et al - Page 8



             Appeal 2007-0368                                                                                    
             Application 10/178,127                                                                              
             Erden in view of Tilman, and claim 11 under 35 U.S.C. § 103 over Van Erden in                       
             view of La Pierre are affirmed.  A new ground of rejection of claims 1-20 has been                  
             entered.                                                                                            
                   Regarding the affirmed rejection(s), 37 C.F.R. § 41.52(a)(1) provides                         
             "Appellant 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 opinion 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 "[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. . . .                                        
                   Should the Appellants elect to prosecute further before the Examiner                          
             pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to seek review                  

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