Appeal No. 97-2761 Page 2
Application No. 07/981,126
Appellant first argues a procedural point, contending that
it was error on our part not to consider a reply brief which
was not entered into the record by the examiner. Whether or
not an examiner enters a reply brief is a petitionable matter
under 37 CFR 1.181. Since the denial of entry of a reply brief
is not an appealable matter, we have no jurisdiction to
consider a reply brief which has not been entered into the
official record of the case by the examiner.
While the current rule 37 CFR 1.193(b)(1), in effect as of
the date of our decision does, indeed, require the examiner to
either “acknowledge receipt and entry of the Reply Brief or
withdraw the final rejection and reopen prosecution to respond
to the Reply Brief,” it is not the date of our decision which
is dispositive but, rather, the date of filing of the reply
brief which determines which rule applies. Appellant admits
that as of the date of the filing of the reply brief, current
rule 37 CFR 1.193 (b)(1) was not yet in effect and so, at this
time, the examiner had more discretion as to whether or not to
enter a reply brief. In any event, any dispute as to the
propriety of the entry of a reply brief must be resolved by
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