Filing an appeal with the United States Patent and Trademark Office (USPTO) is a crucial step in challenging a rejection made by the Examiner. Here’s what happens regarding the examiner’s timeline to file an answer after an appeal brief is filed.
1. Filing of Appeal Brief:
Once an applicant files an appeal brief, it initiates the review process by the examiner.
2. Examiner’s Response Timeline:
According to 37 CFR 41.39(b), the examiner is directed by the USPTO Director to respond within a specified timeframe that can vary based on administrative guidance and workload. See MPEP section 1207.
Therefore, while there are time-limits imposed on the Appellant to file the Appeal brief and subsequent Reply brief, there are no such restrictions imposed on the Examiner.
3. Potential Actions:
If the examiner files an answer within the directed timeframe, the appeal process continues with the examiner’s response.
If the examiner does not file an answer within the specified period, the case remains with the examiner until further action is taken as directed by USPTO procedures.
Appellant can contact the Examiner to determine when the Examiner intends to file the Answer. If the Examiner is unavailable, their SPE can be contacted. The director of the technology center can also be contacted, however, this should be exercised as a last resort only.
Conclusion
While timelines are imposed on the Appellant to file their appeal and reply briefs, there is no such timeline imposed on the Examiner. There is no automatic forwarding of the case to the Patent Trial and Appeal Board (PTAB) without the examiner’s Answer.
Appellants should consult the USPTO’s Manual of Patent Examining Procedure (MPEP) and relevant sections of the Code of Federal Regulations (CFR) for precise guidance on appeal procedures.