What happens when the Board makes a new rejection under 37 CFR 41.50(b)?

When the Board makes a new rejection under 37 CFR 41.50(b), the appellant has two options:

1. Elect to proceed before the examiner:
• The Board’s affirmance is treated as non-final.
• Appellant must amend the newly rejected claims or submit new evidence, or both.
• Prosecution reopens before the examiner.
2. Request rehearing of the new rejection:
• Must be filed within 2 months from the Board’s decision.
• Includes rehearing of both the new rejection and the affirmance.

The MPEP states: If the appellant elects to proceed before the examiner with regard to the new rejection (see MPEP § 1214.01, subsection I., the Board’s affirmance will be treated as nonfinal, and no request for rehearing of the affirmance need be filed at that time.

To learn more:

• Board decision
• new rejection
• 37 CFR 41.50(b)
• reopening prosecution
• request for rehearing