C.F.R. » Title 37 » CHAPTER I—UNITED STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE › SUBCHAPTER A—GENERAL › PART 41—PRACTICE BEFORE THE PATENT TRIAL AND APPEAL BOARD › Subpart B—Ex Parte Appeals

37 C.F.R. § 41.33

Amendments and affidavits or other Evidence after appeal

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(a) Amendments filed after the date of filing an appeal pursuant to § 41.31(a)(1) through (a)(3) and prior to the date a brief is filed pursuant to § 41.37 may be admitted as provided in § 1.116 of this title.

(b) Amendments filed on or after the date of filing a brief pursuant to § 41.37 may be admitted:

(1) To cancel claims, where such cancellation does not affect the scope of any other pending claim in the proceeding, or

(2) To rewrite dependent claims into independent form.

(c) All other amendments filed after the date of filing an appeal pursuant to § 41.31(a)(1) through (a)(3) will not be admitted except as permitted by §§ 41.39(b)(1), 41.50(a)(2)(i), and 41.50(b)(1).

(d)(1) An affidavit or other Evidence filed after the date of filing an appeal pursuant to § 41.31(a)(1) through (a)(3) and prior to the date of filing a brief pursuant to § 41.37 may be admitted if the examiner determines that the affidavit or other Evidence overcomes all rejections under appeal and that a showing of good and sufficient reasons why the affidavit or other Evidence is necessary and was not earlier presented has been made.

(2) All other affidavits or other Evidence filed after the date of filing an appeal pursuant to § 41.31(a)(1) through (a)(3) will not be admitted except as permitted by §§ 41.39(b)(1), 41.50(a)(2)(i), and 41.50(b)(1).

[69 FR 50003, Aug. 12, 2004, as amended at 76 FR 72296, Nov. 22, 2011]
Notes of Decisions
Cited in 3 cases, 2010–2019 · leading case: In Re: Steed, 802 F.3d 1311 (Fed. Cir. 2015).
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In Re: Steed, 802 F.3d 1311 (Fed. Cir. 2015). “See 37 C.F.R. § 41.33 (d)(2) (“All other affidavits or other evidence filed after the date of filing an appeal .”
In Re Meyer Mfg. Corp., 411 F. App'x 316 (Fed. Cir. 2010). “37 C.F.R. § 41.33 (d). The USPTO responds that this question is not properly before the court because, under 37 C.”
In Re: Greenstein (Fed. Cir. 2019). “Greenstein filed his notice of appeal and did not comply with 37 C.F.R. §§ 41.33 (a) and 1.116. However, the Board’s initial decision recited claim 1 as proposed to be amended.”
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