What is the examiner’s authority regarding affidavits filed after a notice of appeal?
After a notice of appeal is filed but before the Board takes jurisdiction, the examiner’s authority to consider affidavits or declarations is limited. According to MPEP § 1211.03:
“In the case of affidavits or declarations filed after the filing of a notice of appeal, but before a jurisdiction passes to the Board under 37 CFR 41.35, the examiner is without authority to consider the same unless the examiner determines that the affidavit or other evidence overcomes all rejections under appeal and that a showing of good and sufficient reasons why the affidavit or other evidence is necessary and was not earlier presented have been made.”
This means the examiner can only consider such submissions if they overcome all rejections and the appellant provides a valid reason for the late submission.
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