Can dependent claims be rewritten as independent claims after filing an appeal brief?
Yes, rewriting dependent claims into independent form is one of the few types of amendments that may be admitted after filing an appeal brief. According to MPEP 1206:
“Amendments filed on or after the date of filing a brief pursuant to 37 CFR 41.37 and within the time period set forth in 37 CFR 90.3 may be admitted only to: (A) cancel claims, where such cancellation does not affect the scope of any other pending claim in the proceeding; or (B) rewrite dependent claims into independent form.”
The MPEP further clarifies that rewriting dependent claims into independent form includes:
- Adding the limitations of the parent claim(s) to the dependent claim
- Incorporating all the subject matter of a dependent claim into an independent claim, canceling the dependent claim, and changing the dependency of claims which had depended from the canceled dependent claim
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