What options are available if an examiner refuses to enter an affidavit as untimely?

If a patent examiner refuses to enter an affidavit or declaration under 37 CFR 1.130 as untimely, the applicant has a specific recourse. According to MPEP 717.01(f):

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:

• The applicant must file a petition to challenge the examiner’s decision
• The applicant cannot appeal this specific issue to the Patent Trial and Appeal Board
• The petition process is separate from the normal appeal process

It’s important to note that this applies specifically to the timeliness of the affidavit submission. If the affidavit is entered but the examiner’s decision on the merits is unfavorable, that decision can be appealed through the normal appeal process.

To learn more:

• Affidavits
• Declarations
• Untimely Submission
• Petition
• Patent Trial and Appeal Board