When can affidavits or declarations be considered after a notice of appeal is filed?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Affidavits or declarations filed with a notice of appeal, but before the Board takes jurisdiction, can be considered if the appellant demonstrates why they are necessary and were not presented earlier. As stated in MPEP § 1211.03:

“Affidavits or declarations filed with the filing of a notice of appeal but before jurisdiction passes to the Board (see MPEP § 1206) will be considered for entry only if the appellant makes the necessary showing under 37 CFR 1.116(e) as to why they are necessary and were not earlier presented.”

The examiner has the authority to consider these submissions without needing approval from the Board.