How are affidavits or other evidence treated when filed after a notice of appeal?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The treatment of affidavits or other evidence filed after a notice of appeal depends on the timing of the submission:

• If filed after the notice of appeal but before the appeal brief, they may be admitted if:
  1. The examiner determines that they overcome all rejections under appeal, and
  2. A showing of good and sufficient reasons why the evidence is necessary and was not earlier presented has been made.
• If filed after the appeal brief, they will generally not be admitted except as permitted by specific regulations.

According to MPEP 1206: “Except as noted above, all other affidavits or other evidence filed after the date of filing a notice of appeal pursuant to 37 CFR 41.31(a)(1) – (a)(3) will not be admitted except as permitted by 37 CFR 41.39(b)(1), 41.50(a)(2)(i) and 41.50(b)(1).”