What is the effect of an RCE on a pending appeal?
Filing a Request for Continued Examination (RCE) has a significant effect on a pending appeal. According to MPEP 1204.01:
“The filing of an RCE under 37 CFR 1.114 , including an RCE filed with a submission and fee under 37 CFR 1.17(e) , will be treated as a withdrawal of the appeal.”
This means that when an RCE is filed:
- The pending appeal is automatically withdrawn
- The application returns to prosecution before the examiner
- Any previously filed appeal brief becomes ineffective
- The applicant must file a new Notice of Appeal if they wish to appeal again after a subsequent final rejection
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