Can affidavits or other evidence be submitted after filing an appeal brief?
Yes, affidavits or other evidence can be submitted after filing an appeal brief, but their entry is not guaranteed. According to MPEP 1206:
“Affidavits or other evidence filed after the date the appeal brief is filed will not be entered as a matter of right.”
The treatment of such evidence is governed by 37 CFR 41.33 and MPEP § 1207.03. The examiner may use their discretion to enter the evidence if it:
- Overcomes at least one rejection
- Shows good and sufficient reasons why it was not earlier presented
If the evidence is entered, the examiner must issue a supplemental examiner’s answer addressing any new issues raised by the entered evidence. The applicant would then have an opportunity to file a reply brief.
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