When does an application leave the jurisdiction of the examiner during the appeal process?
During the appeal process, there comes a point when the application is no longer under the jurisdiction of the examiner. This transition is defined in the MPEP as follows:
“After the time specified in 37 CFR 41.35(a), the application or ex parte reexamination is no longer under the jurisdiction of the examiner.”
The time specified in 37 CFR 41.35(a) is typically:
- The later of the filing date of a reply brief or the expiration of the period for filing a reply brief.
- The mailing of a notice that no reply brief has been filed.
- The expiration of the period for filing a reply brief, if no reply brief is filed.
After this point, the examiner cannot make decisions or conduct interviews regarding the application without specific authorization. However, the Director of the USPTO or an appropriate delegate has the authority to remand the proceeding back to the examiner under certain circumstances.
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