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:
- 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.
- 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.
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