What happens if an affidavit or declaration is submitted after a final rejection?
If an affidavit or declaration under 37 CFR 1.130 is submitted after a final rejection, it can still be considered timely under certain conditions. 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: […] (C) after final rejection, but before or on the same date of filing an appeal, upon a showing of good and sufficient reasons why the affidavit or other evidence is necessary and was not earlier presented in compliance with 37 CFR 1.116(e).
This means that to be considered timely after a final rejection, the applicant must:
- Submit the affidavit or declaration before or on the same date of filing an appeal
- Provide good and sufficient reasons for the late submission
- Explain why the evidence was not presented earlier
Additionally, affidavits or declarations can be submitted after prosecution is closed (including after final rejection) if filed with a request for continued examination (RCE) or continued prosecution application (CPA).
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