CFR > Title 37 - Patents, Trademarks, and Copyrights > CHAPTER I—UNITED STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE > PART 41—PRACTICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES > SUBPART B—Ex Parte Appeals (§41.30 to §41.56) > 41.33—Amendments and affidavits or other evidence after appeal.

41.33—Amendments and affidavits or other evidence after appeal.

(a) Amendments filed after the date of filing an appeal pursuant to § 41.31(a)(1) through (a)(3) and prior to the date a brief is filed pursuant to § 41.37 may be admitted as provided in § 1.116 of this title.
(b) Amendments filed on or after the date of filing a brief pursuant to § 41.37 may be admitted:
(1) To cancel claims, where such cancellation does not affect the scope of any other pending claim in the proceeding, or
(2) To rewrite dependent claims into independent form.
(c) All other amendments filed after the date of filing an appeal pursuant to § 41.31(a)(1) through (a)(3) will not be admitted except as permitted by §§ 41.39(b)(1), 41.50(a)(2)(i), 41.50(b)(1) and 41.50(c).
(d) (1) An affidavit or other evidence filed after the date of filing an appeal pursuant to § 41.31(a)(1) through (a)(3) and prior to the date of filing a brief pursuant to § 41.37 may be admitted if the examiner determines that the affidavit or other evidence overcomes all rejections under appeal and that a showing of good and sufficient reasons why the affidavit or other evidence is necessary and was not earlier presented has been made.
(2) All other affidavits or other evidence filed after the date of filing an appeal pursuant to § 41.31(a)(1) through (a)(3) will not be admitted except as permitted by §§ 41.39(b)(1), 41.50(a)(2)(i) and 41.50(b)(1).

Code of Federal Regulations

Effective Date Note: At 73 FR 32973, June 10, 2008, § 41.33 was revised, effective December 10, 2008. Per a subsequent final rule published at 73 FR 74972, Dec. 10, 2008, the effective date of this action was delayed indefinitely. For the convenience of the user, the revised text is set forth as follows: § 41.33 Amendments and evidence after appeal. (a) Amendment after notice of appeal and prior to appeal brief. An amendment filed after the date a notice of appeal is filed and prior to the date an appeal brief is filed may be admitted as provided in § 1.116 of this title. (b) Amendment with or after appeal brief. An amendment filed on or after the date an appeal brief is filed may be admitted: (1) To cancel claims. To cancel claims provided cancellation of claims does not affect the scope of any other pending claim in the application or reexamination proceeding on appeal, or (2) To convert dependent claim to independent claim. To rewrite dependent claims into independent form. (c) Other amendments. No other amendments filed after the date an appeal brief is filed will be admitted, except as permitted by §§ 41.50(b)(1), 41.50(d)(1), or 41.50(e) of this subpart. (d) Evidence after notice of appeal and prior to appeal brief. Evidence filed after the date a notice of appeal is filed and prior to the date an appeal brief is filed may be admitted if: (1) The examiner determines that the evidence overcomes at least one rejection under appeal and does not necessitate any new ground of rejection, and (2) appellant shows good cause why the evidence was not earlier presented. (e) Other evidence. All other evidence filed after the date an appeal brief is filed will not be admitted, except as permitted by §§ 41.50(b)(1) or 41.50(d)(1) of this subpart.