When can an examiner reopen prosecution after an appeal brief has been filed?

An examiner can reopen prosecution after an appeal brief has been filed to enter a new ground of rejection, but only with approval from the supervisory patent examiner. According to MPEP 1207.04:

“The examiner may, with approval from the supervisory patent examiner, reopen prosecution to enter a new ground of rejection in response to appellant’s brief.”

This can include both new grounds that would not be proper in an examiner’s answer and those that would be proper with appropriate supervisory approval.

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Tags: Appeal Process, Examiner Actions, New Grounds Of Rejection, patent prosecution