Appeal No. 2006-0281
Application 10/442,950
(B) prominently identified in the “Grounds of Rejection
to be Reviewed on Appeal” section and the “Grounds of
Rejection” section of the answer (see MPEP § 1207.02).
The examiner may use form paragraph 12.154.04.
The examiner’s answer must provide appellant a two-
month time period for reply. The examiner may use form
paragraph 12.179.01 to notify appellant of the period
for reply and to include the approval of the TC
Director or designee. In response to an examiner’s
answer that contains a new ground of rejection,
appellant must either file:
(A) a reply in compliance with 37 CFR 1.111 to request
that prosecution be reopened; or
(B) a reply brief that addresses each new ground of
rejection in compliance with 37 CFR 41.37(c)(1)(vii) to
maintain the appeal.
Appellant must file the reply or reply brief within two
months from the date of the examiner’s answer to avoid
sua sponte dismissal of the appeal as to the claims
subject to the new ground of rejection. See 37 CFR
41.39(b) and subsection “V. APPELLANT’S REPLY TO NEW
GROUNDS OF REJECTION.”
We find from the above passage from the MPEP that a new ground of
rejection made by an examiner in an answer requires the approval
of the Group Director or designee. From our review of the
examiner’s answer, we find no evidence of such approval. Thus,
the examiner’s answer is procedurally flawed. Notwithstanding
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