Appeal No. 2006-1892
Application 09/849,594
Examiner’s communication mailed April 13, 2006, stating that “[t]he [supplemental] reply brief
filed 6/10/05 has been entered and considered . . . [and] forwarded to the Board.”
The following rules apply to the filing of a reply brief, the examiner’s response to a reply
brief and a supplemental reply brief.
37 CFR §41.41 (September 2004)
(a)(1) Appellant may file a reply brief to an examiner’s answer within two months
from the date of the examiner’s answer.
37 CFR §41.43 (September 2004)
(a)(1) After receipt of a reply brief in compliance with § 41.41, the primary examiner
must acknowledge receipt and entry of the reply brief. In addition, the primary
examiner may withdraw the final rejection and reopen prosecution or may furnish a
supplemental examiner’s answer responding to any new issue raised in the reply brief.
. . . .
(b) If a supplemental examiner’s answer is furnished by the examiner, appellant may
file another reply brief under § 41.41 to any supplemental examiner’s answer within
two months from the date of the supplemental examiner’s answer.
Upon the entry of the supplemental reply brief filed August 18, 2005, the record has two
reply briefs in response to the answer mailed April 21, 2005, which have been entered and
considered by the examiner.
In our prior remand entered on March 22, 2006, in Appeal No. 2006-0477 in this
application, we pointed out that the supplemental answer mailed June 20, 2005, contained no
language “responding to any new issue raised in the reply brief” filed June 10, 2005, required to
constitute a supplemental examiner’s answer within the meaning of 37 CFR §41.43(a)(1).
Therefore, there was no “supplemental examiner’s answer” which required or permitted the
filing of a supplemental reply brief under 37 CFR §41.43(b) and MPEP § 1208 (8th ed., Rev. 3,
August 2005).
Thus, we find no basis in the record before us or in the rules of practice before the Board
which provides for entry of the supplemental reply brief filed August 18, 2005.
Accordingly, the examiner is required to take appropriate action consistent with current
examining practice and procedure to clarify the record with respect to the status of the
supplemental reply brief filed August 18, 2005, to either identify a basis for the entry of the
supplemental reply brief in the record and/or under the rules of practice, or hold the
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