[Patentcenter] Extensions available to file Appeal Brief or RCE in revived application?

[Randall Svihla]

Yes and Yes.

Randall S. Svihla
NSIP Law
Washington, D.C.


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Subject: [Patentcenter] Extensions available to file Appeal Brief or RCE in revived application?

[Not sure which group to post this question to, so sorry if it is wrong group.]



An application with a FINAL action was unintentionally abandoned.

A Petition to Revive was filed along with a Notice of Appeal.

The PTO granted the Petition to revive and included the following statement:

"The two-month period for filing an appeal brief under 37 CFR 41.37 ... runs from the date of this decision."

Question #1:  Can we file an RCE instead of an Appeal Brief?

Question #2: Is that two-month date for filing the appeal brief (or an RCE) extendable up to five months (under 37 CFR 1.136(d))?

I believe the answer is "yes" for both questions, but I am checking.

§ 41.37<https://www.law.cornell.edu/cfr/text/37/41.37> states, in relevant parts:

(a) Timing. Appellant must file a brief under this section within two months from the date of filing the notice of appeal under § 41.31<https://www.law.cornell.edu/cfr/text/37/41.31>.

(e) Extensions of time. The time periods set forth in this section are extendable under the provisions of § 1.136<https://www.law.cornell.edu/cfr/text/37/1.136> of this title for patent applications ...

Thanks in advance for responses.


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