How does the Board handle affidavits submitted with a request for rehearing?
The Board of Patent Appeals and Interferences (BPAI) generally does not remand affidavits or declarations submitted with a request for rehearing of its decision, unless a rejection has been made under 37 CFR 41.50(b). MPEP § 1211.03 states:
“It is not the custom of the Board to remand affidavits or declarations offered in connection with a request for rehearing of its decision where no rejection has been made under 37 CFR 41.50(b). Affidavits or declarations submitted for this purpose, not remanded to the examiner, are considered only as arguments.”
This means that in most cases, the Board will treat such affidavits or declarations as part of the appellant’s arguments rather than as new evidence requiring remand to the examiner.
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