Appeal 2007-1535
Application 10/626,969
remaining claims are patentable. Rather, we merely leave the patentability
determination of these claims to the Examiner. See MPEP § 1213.02.
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b) (amended effective Sept. 13, 2004, by final rule notice 69
Fed. Reg. 49,960 (Aug. 12, 2004), 1286 Off. Gaz. Pat. Office 21 (Sept. 7,
2004)). 37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection . . .
shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the Appellants, 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) 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 that the proceeding be
reheard under § 41.52 by the Board
upon the same record. . . .
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