What is the process for reviewing an examiner’s refusal to enter an affidavit as untimely?
If an examiner refuses to enter an affidavit as untimely, the review process is through a petition, not an appeal to the Patent Trial and Appeal Board. MPEP 715.09 clearly states:
Review of an examiner’s refusal to enter an affidavit as untimely is by petition and not by appeal to the Patent Trial and Appeal Board. In re Deters, 515 F.2d 1152, 185 USPQ 644 (CCPA 1975); Ex parte Hale, 49 USPQ 209 (Bd. App. 1941).
This means that if you disagree with an examiner’s decision to not enter your affidavit due to timeliness issues, you must file a petition to challenge this decision rather than including it in an appeal of the overall examination.
To learn more: