[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR41.33]

[Page 389-390]
 
              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--Table of Contents
 
                       Subpart B_Ex Parte Appeals
 
Sec. 41.33  Amendments and affidavits or other evidence after appeal.

    (a) Amendments filed after the date of filing an appeal pursuant to 
Sec. 41.31(a)(1) through (a)(3) and prior to the date a brief is filed 
pursuant to Sec. 41.37 may be admitted as provided in Sec. 1.116 of 
this title.
    (b) Amendments filed on or after the date of filing a brief pursuant 
to Sec. 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 Sec. 41.31(a)(1) through (a)(3) will not be admitted except 
as permitted by Sec. Sec. 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 Sec. 41.31(a)(1) through (a)(3) and prior to the 
date of filing a brief pursuant to Sec. 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 Sec. 41.31(a)(1) through (a)(3) will not 
be admitted except as permitted by Sec. Sec. 41.39(b)(1), 
41.50(a)(2)(i) and 41.50(b)(1).

    Effective Date Note: At 73 FR 32973, June 10, 2008, Sec. 41.33 was 
revised, effective December 10, 2008. For the convenience of the user, 
the revised text is set forth as follows:


 
              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--Table of Contents
 
                       Subpart B_Ex Parte Appeals
 
Sec. 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 Sec. 
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

[[Page 390]]

by Sec. Sec. 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 
Sec. Sec. 41.50(b)(1) or 41.50(d)(1) of this subpart.