What happens if new evidence is filed after the appeal brief in a patent application?
If new evidence is filed after the appeal brief in a patent application, the examiner must determine whether the evidence overcomes all rejections. According to MPEP 1206:
“If the examiner determines that the evidence overcomes all rejections, the examiner should issue a new Office action withdrawing all previous rejections and either allowing the application or setting forth new ground(s) of rejection.”
If the evidence does not overcome all rejections, the examiner must consider whether to admit the evidence and, if admitted, whether to reopen prosecution or maintain the appeal.
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