What are the options for responding to a substitute examiner’s answer after a Board remand?

When responding to a substitute examiner’s answer after a Board remand, an appellant has two main options according to MPEP § 1211.01:

1. Reopen prosecution: “Request that prosecution be reopened before the examiner by filing a reply under 37 CFR 1.111 with or without amendment or submission of affidavits (37 CFR 1.131(a), 37 CFR 1.131(c) or 1.132) or other evidence.”
2. Maintain appeal: “Request that the appeal be maintained by filing a reply brief as provided in 37 CFR 41.41.”

It’s important to note that if a reply brief is accompanied by any amendment, affidavit, or other evidence, it will be treated as a request to reopen prosecution under 37 CFR 41.50(a)(2)(i).

To learn more:

• substitute examiner’s answer
• Board remand
• reopen prosecution
• maintain appeal