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1211.02 Remand by Board To Consider Affidavits or Declarations - 1200 Appeal
1211.02 Remand by Board To Consider Affidavits or Declarations
37 CFR 1.195 Affidavits or declarations after appeal.
Affidavits, declarations, or exhibits submitted after the case has been appealed will not be admitted without a showing of good and sufficient reasons why they were not earlier presented.
Affidavits or declarations filed with or after the filing of a notice of appeal but before jurisdiction passes to the Board (see MPEP § 1210) will be considered for entry only if the appellant makes the necessary showing under 37 CFR 1.195 as to why they were not earlier presented. Authority from the Board is not necessary to consider such affidavits or declarations. Affidavits or declarations filed after a final rejection and prior to a notice of appeal are handled as provided in MPEP § 715.09, § 716, and § 716.01.
In the case of affidavits or declarations filed after the application has been forwarded to the Board, but before a decision thereon by the Board, the examiner is without authority to consider the same in the absence of a remand by the Board. When an application is remanded to the examiner for the consideration of such affidavits or declarations, the examiner, after having given such consideration as the facts in the case require, will return the application to the Board with his or her supplemental examiner's answer on remand, a copy of which should be forwarded to the appellant. If such an affidavit or declaration is not accompanied by the showing required under 37 CFR 1.195, the examiner will not consider its merits. If the delay in filing such affidavit or declaration is satisfactorily explained, the examiner will admit the same and consider its merits.
It is not the custom of the Board to remand affidavits or declarations offered in connection with a request for rehearing of its decision where no rejection has been made under 37 CFR 1.196(b). Affidavits or declarations submitted for this purpose, not remanded to the examiner, are considered only as arguments. In re Martin, 154 F.2d 126, 69 USPQ 75 (CCPA 1946).
For remand to the examiner to consider appellant's response relating to a 37 CFR 1.196(b) rejection, see MPEP § 1214.01.
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