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1205.01 Time for Filing Appeal Brief< [R-3] - 1200 Appeal
1205.01 Time for Filing Appeal Brief< [R-3]
37 CFR *> 41.37(a)< provides 2 months from the date of the notice of appeal for the appellant to file an appeal brief >and the appeal brief fee set forth in 37 CFR 41.20(b)(2)<. In an ex parte reexamination proceeding, the time period can be extended only under the provisions of 37 CFR 1.550(c). See also MPEP § 2274.
The usual period of time in which appellant must file his or her brief is 2 months from the date of appeal. The Office date of receipt of the notice of appeal (and not the date indicated on any Certificate of Mailing under 37 CFR 1.8) is the date from which this 2>-<month time period is measured. See MPEP § 512. **>If the notice of appeal is filed in accordance with 37 CFR 1.10 using the "Express Mail Post Office to Addressee" service of the United States Postal Service (USPS), the date of deposit with the USPS is the date from which this 2-month time period is measured because the date of deposit shown by the "date in" on the "Express Mail" label or other official USPS notation is considered to be the date of receipt. See MPEP § 513.
37 CFR 41.37(a) does not permit the brief to be filed within the time allowed for reply to the action from which the appeal was taken even if such time is later. Once appellant timely files a notice of appeal in compliance with 37 CFR 41.31, the time period for reply set forth in the last Office action is tolled and is no longer relevant for the time period for filing an appeal brief. For example, if appellant filed a notice of appeal within one month from the mailing of a final Office action which sets forth a 3-month shortened statutory period for reply, and then the appellant filed an appeal brief after 2 months from the filing date of the notice of appeal but within 3 months from the mailing of the final action, a petition for an extension of time for one month would be required. Similarly, if the appellant files an amendment or a request for continued examination (RCE) under 37 CFR 1.114, instead of an appeal brief, after 2 months from the filing date of the notice of appeal but within 3 months from the mailing of the final action, the petition for an extension of time would be required.
This 2-month time period for a patent application may be extended under 37 CFR 1.136(a), and if 37 CFR 1.136(a) is not available, under 37 CFR 1.136(b) for extraordinary circumstances.<
In the event that the appellant finds that he or she is unable to file a brief within the time period allotted by the *>rule<, he or she may file a petition, with fee, to the Technology Center (TC), requesting additional time under 37 CFR 1.136(a). Additional time in excess of 5 months will not be granted unless extraordinary circumstances are involved under 37 CFR 1.136(b). The time extended is added to the calendar day of the original period, as opposed to being added to the day it would have been due when said last day is a Saturday, Sunday, or Federal holiday.
**When an application is revived after abandonment for failure on the part of the appellant to take appropriate action after final rejection, and the petition to revive was accompanied by a notice of appeal, appellant has 2 months, from the mailing date of the *>Director's< affirmative decision on the petition, in which to file the appeal brief. The time period for filing the appeal brief may be extended under 37 CFR 1.136.
>FAILURE TO TIMELY FILE AN APPEAL BRIEF<
With the exception of a declaration of an interference or suggestion of claims for an interference and timely copying of claims for an interference, the appeal ordinarily will be dismissed if the brief *>and the fee under 37 CFR 41.20(b)(2) are< not filed within the period provided by 37 CFR *> 41.37(a)< or within such additional time as may be properly extended.
A brief must be filed to preserve appellant's right to the appealed claims, notwithstanding circumstances such as:
(A) the possibility or imminence of an interference involving the subject application, but not resulting in withdrawal of the final rejection prior to the brief's due date;
(B) the filing of a petition to invoke the supervisory authority of the *>Director< under 37 CFR 1.181;
(C) the filing of an amendment, even if it is one which the examiner previously has indicated may place one or more claims in condition for allowance, unless the examiner, in acting on the amendment, disposes of all issues on appeal;
(D) the receipt of a letter from the examiner stating that prosecution is suspended, without the examiner withdrawing the final rejection from which appeal has been taken or suggesting claims for an interference, and without an administrative patent judge declaring an interference with the subject application.
Although failure to file the brief >and the required appeal brief fee< within the permissible time will result in dismissal of the appeal, if any claims stand allowed, the application does not become abandoned by the dismissal, but is returned to the examiner for action on the allowed claims. See MPEP § 1215.04. If there are no allowed claims, the application is abandoned as of the date the brief was due. Claims which have been objected to as dependent from a rejected claim do not stand allowed. In a reexamination proceeding failure to file the brief will result in the issuance of the certificate under 37 CFR 1.570 >or 1.997<.
If the time for filing a brief has passed and the application has consequently become abandoned, the applicant may petition to revive the application >under 37 CFR 1.137<, as in other cases of abandonment **>. See MPEP § 711.03(c). If< the appeal is dismissed, but the application is not abandoned**>because there is at least one allowed claim, the applicant may file a petition< to reinstate the claims and the appeal, but a showing equivalent to that in a petition to revive under 37 CFR 1.137 is required. **>See MPEP § 711.03(c). In addition to the petition and petition fee, appellant must file:
(A) A request for continued examination (RCE) under 37 CFR 1.114 accompanied by a submission (i.e., a reply under 37 CFR 1.111) and the fee as set forth in 37 CFR 1.17(e) if the application is a utility or plant application filed on or after June 8, 1995, or a continuing application under 37 CFR 1.53(b) (or a CPA under 37 CFR 1.53(d) if the application is a design application); or
(B) An appeal brief and the appeal brief fee to reinstate the appeal. A proper brief and the required fee must be filed before the petition will be considered on its merits.<
Where the dismissal of the appeal is believed to be in error, filing a petition, pointing out the error, may be sufficient.
**>
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