What is the process for petitioning to designate a new ground of rejection in an examiner’s answer?

The process for petitioning to designate a new ground of rejection in an examiner’s answer is outlined in 37 CFR 41.40. Here are the key points:

  • The petition must be filed within two months from the entry of the examiner’s answer and before filing any reply brief.
  • The petition should be filed under 37 CFR 1.181 to the Director.
  • Failure to file a timely petition waives any arguments that a rejection should be designated as a new ground of rejection.

As stated in the MPEP: “37 CFR 41.40 sets forth the exclusive procedure for an appellant to request review of the primary examiner’s failure to designate a rejection as a new ground of rejection via a petition to the Director under 37 CFR 1.181.”

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Tags: appeal procedure, examiner's answer, New Ground Of Rejection