Appeal No. 2007-1027 Page 6
Application No. 10/134,575
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 CFR § 1.136(a).
Regarding the affirmed rejection(s), 37 C.F.R. § 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 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 appellant 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
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
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