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2678    Rebuttal Briefs [R-11.2013]

37 C.F.R. 41.66   Time for filing briefs.

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  • (d) Any appellant may file a rebuttal brief under § 41.71 within one month of the date of the examiner’s answer. The time for filing a rebuttal brief or an amended rebuttal brief may not be extended.
  • (e) No further submission will be considered and any such submission will be treated in accordance with § 1.939 of this title.

37 C.F.R. 41.71   Rebuttal brief.

  • (a) Within one month of the examiner’s answer, any appellant may once file a rebuttal brief.
  • (b)
    • (1) The rebuttal brief of the owner may be directed to the examiner’s answer and/or any respondent brief.
    • (2) The rebuttal brief of the owner shall not include any new or non-admitted amendment, or an affidavit or other evidence. See § 1.116 of this title for amendments, affidavits or other evidence filed after final action but before or on the same date of filing an appeal and § 41.63 for amendments, affidavits or other evidence filed after the date of filing the appeal.
  • (c)
    • (1) The rebuttal brief of any requester may be directed to the examiner’s answer and/or the respondent brief of the owner.
    • (2) The rebuttal brief of a requester may not be directed to the respondent brief of any other requester.
    • (3) No new ground of rejection can be proposed by a requester.
    • (4) The rebuttal brief of a requester shall not include any new or non-admitted affidavit or other evidence. See § 1.116(d) of this title for affidavits or other evidence filed after final action but before or on the same date of filing an appeal and § 41.63(c) for affidavits or other evidence filed after the date of filing the appeal.
  • (d) The rebuttal brief must include a certification that a copy of the rebuttal brief has been served in its entirety on all other parties to the proceeding. The names and addresses of the parties served must be indicated.
  • (e) If a rebuttal brief is timely filed under paragraph (a) of this section but does not comply with all the requirements of paragraphs (a) through (d) of this section, appellant will be notified of the reasons for non-compliance and provided with a non-extendable period of one month within which to file an amended rebuttal brief. If the appellant does not file an amended rebuttal brief during the one-month period, or files an amended rebuttal brief which does not overcome all the reasons for non-compliance stated in the notification, that appellant’s rebuttal brief and any amended rebuttal brief by that appellant will not be considered.

In the examiner’s answer, each appellant is given a period of one month from the mailing date of the examiner’s answer within which to file a rebuttal brief in response to the issues raised in the examiner’s answer and/or in the respondent brief of an opposing party. The one month period may not be extended. 37 CFR 41.66(d).

The rebuttal brief must (A) clearly identify each issue, and (B) point out where the issue was raised in the examiner’s answer and/or in the respondent brief. In addition, the rebuttal brief must be limited to issues raised in the examiner’s answer or in any respondent brief. A rebuttal brief will not be entered if it does not clearly identify each issue and/or is not limited to issues raised in the examiner’s answer or in any respondent brief. Such a rebuttal brief will remain in the file, but it will not be addressed nor considered, except to inform the appropriate party that it was not entered and why.

The rebuttal brief of a third party requester may not be directed to the respondent brief or any other third party requester. No new ground of rejection may be proposed by a third party requester.

After the examiner’s answer, only a rebuttal brief (or an amended rebuttal brief, where appellant is given one opportunity to correct a defective original rebuttal brief (MPEP § 2679)) will be received into the reexamination proceeding. No other submission will be considered, and any such other submission will be returned as an improper paper. 37 CFR 1.939.

If no rebuttal brief is received within the one month period set in the examiner’s answer, the Central Reexamination Unit (CRU) will issue a notification letter to parties using form paragraph 26.67, and will then forward the reexamination proceeding to the Board for decision on the appeal(s).

¶ 26.67    No Receipt of Rebuttal Brief(s)

Appellant(s) was given a period of one month from the mailing date of the examiner’s answer within which to file a rebuttal brief in response to the examiner’s answer. No rebuttal brief has been received within that time period. Accordingly, the reexamination proceeding is being forwarded to the Board of Patent Appeals and Interferences for decision on the appeal(s).

Prosecution remains closed. Any further reply/comments by any party will not be considered, and may be returned to the party that submitted it.

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Central Reexamination Unit

If one or more rebuttal briefs is/are timely received, see MPEP § 2679 for treatment of the rebuttal brief(s).

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Last Modified: 03/27/2014 10:10:35