How are affidavits or other evidence treated when filed after a notice of appeal?

The treatment of affidavits or other evidence filed after a notice of appeal depends on the timing of the submission:

• If filed after the notice of appeal but before the appeal brief, they may be admitted if:
  1. The examiner determines that they overcome all rejections under appeal, and
  2. A showing of good and sufficient reasons why the evidence is necessary and was not earlier presented has been made.
• If filed after the appeal brief, they will generally not be admitted except as permitted by specific regulations.

According to MPEP 1206: “Except as noted above, all other affidavits or other evidence filed after the date of filing a notice of appeal pursuant to 37 CFR 41.31(a)(1) – (a)(3) will not be admitted except as permitted by 37 CFR 41.39(b)(1), 41.50(a)(2)(i) and 41.50(b)(1).”

To learn more:

• affidavits
• evidence
• patent appeal
• MPEP 1206