What happens if I file a Notice of Appeal with an amendment?
If you file an amendment, a Notice of Appeal, and an appeal brief on the same date after receiving a final action, the rules under 37 CFR 1.116 apply. The MPEP states:
“If appellant files an amendment, a notice of appeal and an appeal brief on the same date after the mailing of a final action, 37 CFR 1.116 applies. Such an amendment filed after a final action is not entered as a matter of right.“
The amendment may be admitted if it:
- Cancels claims or complies with all requirements of form expressly set forth in previous Office actions
- Presents rejected claims in better form for consideration on appeal
- Amends the specification, including claims, upon a showing of good and sufficient reasons why the amendment is necessary and was not earlier presented
It’s important to note that the amendment is not automatically entered, and its admission is at the discretion of the examiner based on the criteria mentioned above.
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