Appeal 2007-4405
Application 09/895,153
37 C.F.R. §41.41 (2005)
(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 C.F.R. §41.43 (2005)
(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 the Examiner’s Answers delivered to
Appellants on April 5, 2007, and June 7, 2007, constituted a “supplemental
examiner’s answer” within the meaning of 37 C.F.R. § 41.43(a)(1) that
requires the filing of a supplemental reply brief under 37 C.F.R. §41.43(b).
See also MPEP § 1208 (8th ed., Rev. 5, August 2006). Thus, the Reply
Briefs filed June 6, 2007, and August 8, 2007, was improperly submitted.
Further, the Examiner’s entry and consideration of the Reply Brief filed
August 8, 2007, was improper. The Examiner has not responded to the
Reply Brief filed June 6, 2007.
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 Reply Brief filed June 6, 2007, which
has not been acknowledged by the Examiner, and with respect to the status
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