37 C.F.R. § 41.79

Rehearing

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(a) Parties to the appeal may file a request for rehearing of the decision within one month of the date of:

(1) The original decision of the Board under § 41.77(a),

(2) The original § 41.77(b) decision under the provisions of § 41.77(b)(2),

(3) The expiration of the time for the owner to take action under § 41.77(b)(2), or

(4) The new decision of the Board under § 41.77(f).

(b)(1) The request for rehearing must state with particularity the points believed to have been misapprehended or overlooked in rendering the Board's opinion reflecting its decision. Arguments not raised in the briefs before the Board and evidence not previously relied upon in the briefs are not permitted in the request for rehearing except as permitted by paragraphs (b)(2) and (b)(3) of this section.

(2) Upon a showing of good cause, appellant and/or respondent may present a new argument based upon a recent relevant decision of either the Board or a Federal Court.

(3) New arguments responding to a new ground of rejection made pursuant to § 41.77(b) are permitted.

(c) Within one month of the date of service of any request for rehearing under paragraph (a) of this section, or any further request for rehearing under paragraph (d) of this section, the owner and all requesters may once file comments in opposition to the request for rehearing or the further request for rehearing. The comments in opposition must be limited to the issues raised in the request for rehearing or the further request for rehearing.

(d) If a party to an appeal files a request for rehearing under paragraph (a) of this section, or a further request for rehearing under this section, the Board shall render a decision on the request for rehearing. The decision on the request for rehearing is deemed to incorporate the earlier opinion reflecting its decision for appeal, except for those portions specifically withdrawn on rehearing and is final for the purpose of judicial review, except when noted otherwise in the decision on rehearing. If the Board opinion reflecting its decision on rehearing becomes, in effect, a new decision, and the Board so indicates, then any party to the appeal may, within one month of the new decision, file a further request for rehearing of the new decision under this subsection. Such further request for rehearing must comply with paragraph (b) of this section.

(e) The times for requesting rehearing under paragraph (a) of this section, for requesting further rehearing under paragraph (c) of this section, and for submitting comments under paragraph (b) of this section may not be extended.

Notes of Decisions

Cited in 7 cases (4 in the last 5 years), 2013–2023 · leading case: United States v. Arthrex, Inc., 594 U.S. 1 (2021).

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United States v. Arthrex, Inc., 594 U.S. 1 (2021). “37 CFR §41.79 (b)(1). This broad over- sight ensures that administrative patent judges “have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive offic- ers.”

Acme Scale Co., Inc. v. Lts Scale Co., LLC, 615 F. App'x 673 (Fed. Cir. 2015). · cites it 2× “” Rehearing Decision at *6 (second alteration in original) (quoting 37 C.F.R. § 41.79 (d)). The Board also stated the “Rehearing decision is hereby designated, with respect to the facts addressed here, ‘in effect, a new decision.”

Rexnord Indus., LLC v. Kappos, 705 F.3d 1347 (Fed. Cir. 2013). “1997), the Board has a rule that similarly bars the presentation of new arguments outside appellant’s opening brief (absent circumstances not alleged here), see 37 C.F.R. § 41.79 (b). PTO Br. 24. We observe that Rexnord was not the appellant before the Board, and that the…”

Virnetx Inc. v. Apple Inc. (Fed. Cir. 2023). · cites it 2× “13 VirnetX argues that the Board’s failure to render a decision itself on the request for rehearing violated 37 C.F.R. § 41.79 (d), which provides that the Board “shall render a decision on the request for rehearing.”

Polycom, Inc. v. Fullview, Inc. (Fed. Cir. 2019). “” 37 C.F.R. § 41.79 (2004). While it is true that the Board’s reopen decision did not address arguments regard- ing anticipation over Lelong, the reopen decision “is deemed to incorporate the earlier decision[s], except for those portions specifically withdrawn.”

United States v. Arthrex, Inc. (2021). “37 CFR §41.79 (b)(1). This broad over- sight ensures that administrative patent judges “have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive offic- ers.”

Carucel Investments L.P. v. Vidal (Fed. Cir. 2023). “” 37 C.F.R. § 41.79 (b)(1). No similar regulation or other authority exists in the IPR context.”

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