Can new evidence be included in a patent appeal brief?
No, new evidence cannot be included in a patent appeal brief. MPEP 1205.02 clearly states:
“37 CFR 41.37(c)(2) prohibits the inclusion in a brief of any new or non-admitted amendment, affidavit or other evidence.”
If an appellant wishes to have new evidence considered, they must follow a different process:
- The appellant must seek review of an examiner’s refusal to admit an amendment, affidavit, or evidence through a petition to the Director under 37 CFR 1.181.
- The time for filing this petition is based on the date the examiner refused to enter the amendment, affidavit, or evidence, not the date the brief is filed.
It’s important to note that the appeal brief should be directed to the claims and the record of the case as they appeared at the time of the appeal. Any attempt to introduce new evidence in the brief itself will be rejected.
To learn more: