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1212 Board Requires Appellant to Address Matter [R-3] - 1200 Appeal
1212 Board Requires Appellant to Address Matter [R-3]
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37 CFR 41.50 Decisions and other actions by the Board.
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(d) The Board may order appellant to additionally brief any matter that the Board considers to be of assistance in reaching a reasoned decision on the pending appeal. Appellant will be given a non-extendable time period within which to respond to such an order. Failure to timely comply with the order may result in the sua sponte dismissal of the appeal.<
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37 CFR *>41.50(d)< authorizes the Board to **>additionally brief< any matter deemed appropriate for a reasoned decision on the appeal. This may include, for example: (A) the applicability of particular case law that has not been previously identified as relevant to an issue in the appeal; or (B) the applicability of prior art that has not been made of record.
The rule further provides that the appellant will be given a non-extendable time period within which to respond to the requirement. Failure to respond within the time period set by the Board *>may< result in dismissal of the appeal.
The making of a requirement under 37 CFR *>41.50(d)< is discretionary with the Board. The authority granted in 37 CFR *>41.50(d)< does not affect the Board's authority to remand a case to the examiner in a situation where the Board considers action by the examiner in the first instance to be necessary or desirable. See MPEP § 1211. Also, after an appellant has replied to a requirement under 37 CFR *>41.50(d)<, a remand >by the Board< to the examiner may be ** appropriate >to permit the examiner to respond to the appellant's response to the Board's order<.
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