Ex Parte Blye et al - Page 16

                Appeal 2007-1821                                                                             
                Application 11/040,964                                                                       

                                              TIME PERIOD                                                    
                      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 CFR § 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 examiner unless, as a mere incident to the limited                    
                prosecution, the affirmed rejection is overcome.                                             

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