What happens if an appeal brief is not filed within the required time?
If an appeal brief is not filed within the required time, the appeal will ordinarily be dismissed. According to MPEP 1205.01:
“The appeal ordinarily will be dismissed if the brief is not filed within the period provided by 37 CFR 41.37(a) or within such additional time as may be properly extended.”
However, the consequences depend on the status of the claims:
- If there are allowed claims, the application does not become abandoned. It is returned to the examiner for action on the allowed claims.
- If there are no allowed claims, the application is abandoned as of the date the brief was due.
- In an ex parte reexamination proceeding, failure to file the brief will result in the issuance of the certificate under 37 CFR 1.570.
It’s important to note that claims objected to as dependent from a rejected claim do not stand allowed.
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