Can affidavits or declarations be submitted after the prosecution is closed?
Yes, affidavits or declarations under 37 CFR 1.130 can be submitted after the prosecution is closed, but only under specific circumstances. According to MPEP 717.01(f):
Affidavits and declarations submitted under 37 CFR 1.130 and other evidence traversing rejections are considered timely if submitted: […] (D) after the prosecution is closed (e.g., after a final rejection, after appeal, or after allowance) if applicant files the affidavit or other evidence with a request for continued examination (RCE) under 37 CFR 1.114 in a utility or plant application filed on or after June 8, 1995; or a continued prosecution application (CPA) under 37 CFR 1.53(d) in a design application.
This means that affidavits or declarations can be submitted after prosecution is closed if:
- They are filed with a Request for Continued Examination (RCE) in utility or plant applications filed on or after June 8, 1995
- They are filed with a Continued Prosecution Application (CPA) in design applications
These options allow applicants to submit new evidence and continue prosecution even after a final rejection, appeal, or allowance, providing additional opportunities to overcome rejections or present new information.
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