What happens if an amendment is filed after the date the appeal brief is filed?
If an amendment is filed after the date the appeal brief is filed, it will not be entered as a matter of right. According to MPEP 1206:
“Amendments filed after the date the appeal brief is filed will not be entered as a matter of right.”
Such amendments are treated as described in 37 CFR 41.33 and MPEP § 1207.03. The examiner may use their discretion to enter the amendment if it:
- Cancels claims
- Adopts examiner suggestions
- Removes issues for appeal
- Provides evidence
- Simplifies issues for appeal
If entered, the examiner must submit a supplemental examiner’s answer addressing any new issues raised by the entered amendment.
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