[Patentpractice] Examiner's answer to appeal brief not received within 2 months

[Krista Jacobsen]

Hi Randall,

This is very helpful information — thank you. We are not way past the 2-month deadline, so perhaps the examiner did prepare the answer on time, and it’s going through back-end processing. It is good to know that the examiner will get dinged and her supervisor will automatically be notified if she doesn't get it done by the internal deadline. 

Thanks again.

Best regards,
Krista

------------------------------------------
Krista S. Jacobsen
Attorney and Counselor at Law
Jacobsen IP Law
krista at jacobseniplaw.com
T:  408.455.5539
www.jacobseniplaw.com

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> On Dec 13, 2024, at 6:25 AM, Randall Svihla <rsvihla at nsiplaw.com> wrote:
> 
> Hi, Krista
>  
> The Examiner will get hit with minus points on the workflow management element of their rating if they don't issue an Examiner's answer by the deadline on their docket report, and the case will pop up on his supervisor's list of late cases, so that will prevent an Examiner from sitting on the Appeal Brief forever.
>  
> When I was an Examiner, we had to issue an Examiner's Answer by the end of the biweek that included the date that was two months after the Appeal Brief was placed on our docket.  That may have changed slightly, but is still approximately correct,  And it takes some time after the Examiner turns in the Examiner's Answer for it to be processed and mailed.
>  
> Best regards,
>  
> Randall S. Svihla
> NSIP Law
> Washington, D.C.
>  
>  
> From: Patentpractice <patentpractice-bounces at oppedahl-lists.com <mailto:patentpractice-bounces at oppedahl-lists.com>> On Behalf Of Krista Jacobsen via Patentpractice
> Sent: Friday, December 13, 2024 9:02 AM
> To: For patent practitioners. This is not for laypersons to seek legal advice. <patentpractice at oppedahl-lists.com <mailto:patentpractice at oppedahl-lists.com>>
> Cc: Krista Jacobsen <krista at jacobseniplaw.com <mailto:krista at jacobseniplaw.com>>
> Subject: [Patentpractice] Examiner's answer to appeal brief not received within 2 months
>  
> Hi everyone,
>  
> According to the transaction history, the appeal brief in an application was forwarded to the examiner over 2 months ago. We have not yet received the examiner's answer.
>  
> Per MPEP 1207.02, "[t]he examiner should furnish the appellant with a written statement in answer to the appellant’s brief within 2 months after the receipt of the brief by the examiner."
>  
> (Note the word "should," which seems problematic, at least because the appeal cannot be forwarded to the PTAB without an examiner's answer. What's to stop an examiner from just sitting on the appeal brief forever?) 
>  
> Other than calling the examiner's supervisor (and/or Patrick the Ombudsman who is definitely not AI), is there anything an applicant can do when the examiner misses the 2-month (apparently soft) deadline to provide the answer? 
>  
>  
> Thanks in advance.
>  
> Best regards,
> Krista
>  
> ------------------------------------------
> Krista S. Jacobsen
> Attorney and Counselor at Law
> Jacobsen IP Law
> krista at jacobseniplaw.com <mailto:krista at jacobseniplaw.com>
> T:  408.455.5539
> www.jacobseniplaw.com <http://www.jacobseniplaw.com/>

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