Can new evidence be included in a respondent brief?

No, new evidence cannot be included in a respondent brief during an inter partes reexamination appeal. The MPEP clearly states in reference to 37 CFR 41.68(b)(2):

“A respondent brief shall not include any new or non-admitted amendment, or any new or non-admitted affidavit or other evidence.”

This restriction ensures that the appeal process focuses on the evidence and arguments already present in the record. Any new evidence should have been submitted earlier in the examination process, following the rules outlined in 37 CFR 1.116 for submissions after final action but before or on the same date of filing an appeal, or 37 CFR 41.63 for submissions after the date of filing the appeal.

To learn more:

• respondent brief
• new evidence
• inter partes reexamination
• patent appeals