Appeal No. 2006-0477
Application 09/849,594
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.
It is clear from the record that, contrary to the above rules, the examiner did not
acknowledge receipt and entry of the reply brief filed under 37 CFR §41.41(a)(1) as required by
37 CFR §41.43(a)(1), and mailed a supplemental answer which contained no language
“responding to any new issue raised in the reply brief” as provided in 37 CFR §41.43(a)(1).
Thus, there was no “supplemental examiner’s answer” within the meaning of 37 CFR
§41.43(a)(1) required for the filing of a supplemental reply brief under 37 CFR §41.43(b). See
also MPEP § 1208 (8th ed., Rev. 3, August 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 above
documents under the above rules, with a view toward placing this application in condition for
decision on appeal with respect to the issues presented.
This remand is not made for the purpose of directing the examiner to further consider the
grounds of rejection.
We hereby remand this application to the examiner, via the Office of a Director of the
Technology Center, for appropriate action in view of the above comments.
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Last modified: November 3, 2007