1212 Board Requires Appellant to Address Matter [R-3]
37 C.F.R. 41.50 Decisions and other actions by the Board.** >
- (d) The Board may order appellant to additionally brief any matter that the Board considers to be of assistance in reaching a reasoned decision on the pending appeal. Appellant will be given a non-extendable time period within which to respond to such an order. Failure to timely comply with the order may result in the sua sponte dismissal of the appeal. <
37 CFR 41.50(d) authorizes the Board to ** > additionally brief < any matter deemed appropriate for a reasoned decision on the appeal. This may include, for example: (A) the applicability of particular case law that has not been previously identified as relevant to an issue in the appeal; or (B) the applicability of prior art that has not been made of record.
The rule further provides that the appellant will be given a non-extendable time period within which to respond to the requirement. Failure to respond within the time period set by the Board * > may < result in dismissal of the appeal.
The making of a requirement under 37 CFR 41.50(d) < is discretionary with the Board. The authority granted in 37 CFR 41.50(d) does not affect the Board’s authority to remand a case to the examiner in a situation where the Board considers action by the examiner in the first instance to be necessary or desirable. See MPEP § 1211. Also, after an appellant has replied to a requirement under 37 CFR 41.50(d), a remand > by the Board < to the examiner may be ** appropriate > to permit the examiner to respond to the appellant’s response to the Board’s order < .