MPEP § 2275 — MPEP § 2275
Current through: 2022-07-01

2275-Examiner’s Answer 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2200 

 Section 2275 
 

 
 
 
 
 
 2275 Examiner’s Answer [R-08.2017]

 
 37 CFR 41.39 Examiner’s answer. 

 
 (a) Content of examiner's answer. The primary examiner may, within
 such time as may be directed by the Director, furnish a written answer to the
 appeal brief.
 
 (1) An examiner's answer is deemed to incorporate all of the
 grounds of rejection set forth in the Office action from which the appeal is
 taken (as modified by any advisory action and pre-appeal brief conference
 decision), unless the examiner's answer expressly indicates that a ground of
 rejection has been withdrawn.
 

 (2) An examiner's answer may include a new ground of
 rejection. For purposes of the examiner's answer, any rejection that relies
 upon any Evidence not relied upon in the Office action from which the appeal
 is taken (as modified by any advisory action) shall be designated by the
 primary examiner as a new ground of rejection. The examiner must obtain the
 approval of the Director to furnish an answer that includes a new ground of
 rejection.
 

 
 

 (b) Appellant's response to new ground of rejection. If an
 examiner’s answer contains a rejection designated as a new ground of rejection,
 appellant must within two months from the date of the examiner’s answer exercise
 one of the following two options to avoid sua sponte dismissal of the appeal as to
 the claims subject to the new ground of rejection:
 
 (1) Reopen prosecution. Request that prosecution be reopened
 before the primary examiner by filing a reply under §
 1.111 of this title with or without amendment or
 submission of affidavits ( §§ 1.130 ,
 1.131 or 1.132 of this of this
 [sic] title) or other Evidence. Any amendment or
 submission of affidavits or other Evidence must be relevant to the new
 ground of rejection. A request that complies with this paragraph will be
 entered and the application or the patent under ex parte 
 reexamination will be reconsidered by the examiner under the provisions of
 §
 1.112 of this title. Any request that prosecution be
 reopened under this paragraph will be treated as a request to withdraw the
 appeal.
 

 (2) Maintain appeal. Request that the appeal be maintained by
 filing a reply brief as set forth in § 41.41 . Such a reply
 brief must address as set forth in § 41.37(c)(1)(iv) each
 new ground of rejection and should follow the other requirements of a brief
 as set forth in § 41.37(c) . A reply
 brief may not be accompanied by any amendment, affidavit ( §§
 1.130 , 1.131 or
 1.132 of this of this [sic] title)
 or other Evidence. If a reply brief filed pursuant to this section is
 accompanied by any amendment, affidavit or other Evidence, it shall be
 treated as a request that prosecution be reopened before the primary
 examiner under paragraph (b)(1) of this
 section.
 

 
 

 (c) Extensions of time. Extensions of time under § 1.136(a) 
 of this title for patent applications are not applicable to the time period set
 forth in this section. See § 1.136(b) of this title for
 extensions of time to reply for patent applications and § 1.550(c) 
 of this title for extensions of time to reply for ex parte 
 reexamination proceedings.
 

 
 

 MPEP §
 1207 through § 1207.05 relate to preparation of
 examiner’s answers in appeals. The procedures covered in these sections apply to appeals in
 both patent applications and patents undergoing ex parte reexamination
 proceedings, except as provided for in this Chapter. For example, there is no requirement
 for pre-appeal conferences in reexamination proceedings but there is a requirement for
 panel review of the examiner’s answer.
 

 After receipt of a reply brief in compliance with 37 CFR 41.41 or the
 expiration of the time in which to file such a reply brief ( 37 CFR 41.35 ),
 jurisdiction over the appeal passes to the Board. Normally, the examiner does not need to
 acknowledge the reply brief and will not have an opportunity for further comment prior to a
 decision by the Board. However, the Board may remand the appeal to the examiner to furnish
 a substitute examiner’s answer responsive to the remand or the Director may remand the
 proceeding under 37 CFR
 41.35(c) , such as where there has been a change of law that would
 require that a new ground of rejection be considered. See 37 CFR 41.50(a)(2) 
 and MPEP §
 1207.05 for information on substitute examiner’s answer. A
 substitute examiner’s answer is not permitted unless the reexamination proceeding has been
 remanded by the Board or Director for such purposes.
 

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 2201-Introduction 

 2202-Citation of Prior Art and Written Statements 

 2203-Persons Who May Cite Prior Art or Written Statements 

 2204-Time for Filing Prior Art or Section 301 Written Statements 

 2205-Content of Prior Art or Section 301 Written Statements 

 2206-Submission and Handling of Prior Art or Section 301 Written Statements 

 2207-Entry of Court Decision in Patent File 

 2208-Service of Prior Art or Section 301 Written Statements on Patent Owner 

 2209-Ex Parte Reexamination 

 2210-Request for Ex Parte Reexamination under 35 U.S.C. 302 

 2211-Time for Requesting Ex Parte Reexamination under 35 U.S.C. 302 

 2212-Persons Who May File a Request for Ex Parte Reexamination under 35 U.S.C. 302 
 2212.01-Inquiries from Persons Other Than the Patent Owner 

 
 

 2213-Representative of Requester 

 2214-Content of Request for Ex Parte Reexamination Filed under 35 U.S.C. 302 

 2215-Fee for Requesting Ex Parte Reexamination under 35 U.S.C. 302 

 2216-Substantial New Question of Patentability 

 2217-Statement Applying Prior Art in a Request Filed under 35 U.S.C. 302 

 2218-Copies of Prior Art 

 2219-Copy of Printed Patent 

 2220-Certificate of Service 

 2221-Amendments Included in Request Filed under 35 U.S.C. 302 by Patent Owner 

 2222-Address of Patent Owner 

 2223-Withdrawal of Attorney or Agent 

 2224-Correspondence 

 2225-Untimely Paper Filed Prior to Order under 35 U.S.C. 304 

 2226-Initial Processing of Request for Ex Parte Reexamination Filed under 35 U.S.C. 302 

 2227-Incomplete Request for Ex Parte Reexamination Filed under 35 U.S.C. 302 

 2228-[Reserved] 

 2229-Notice of Request under 35 U.S.C. 302 for Ex Parte Reexamination in Official Gazette 

 2230-Constructive Notice to Patent Owner 

 2231-Processing of Request Corrections 

 2232-Public Access to Reexaminations Filed under 35 U.S.C. 302 
 2232.01-Determining if a Reexamination Request Was Filed under 35 U.S.C. 302 for a Patent 

 
 

 2233-Processing in Central Reexamination Unit and Technology Center 

 2234-Entry of Amendments 

 2235-Record Systems 

 2236-Assignment of Reexamination 

 2237-Transfer Procedure 

 2238-Time Reporting 

 2239-Reexamination Ordered at the Director’s Initiative 

 2240-Decision on Request Filed under 35 U.S.C. 302 

 2241-Time for Deciding Request Filed under 35 U.S.C. 302 

 2242-Criteria for Deciding Request Filed under 35 U.S.C. 302 

 2243-Claims Considered in Deciding Request Filed under 35 U.S.C. 302 

 2244-Prior Art on Which the Determination Is Based in Requests Filed under 35 U.S.C. 302 

 2245-Processing of Decision 

 2246-Decision Ordering Reexamination under 35 U.S.C. 304 

 2247-Decision under 35 U.S.C. 303 on Request for Reexamination filed Under 35 U.S.C. 302, Request Denied 
 2247.01-Examples of Decisions on Request for Reexamination 

 
 

 2248-Petition From Denial of Request Filed Under 35 U.S.C. 302 

 2249-Patent Owner’s Statement in Reexaminations Filed Under 35 U.S.C. 302 

 2250-Amendment by Patent Owner 
 2250.01-Correction of Patent Drawings 

 2250.02-Correction of Inventorship 

 2250.03-Fees for Adding Claims and for Filing a Petition 

 
 

 2251-Reply by Third Party Requester 

 2252-Consideration of Statement and Reply 

 2253-Consideration by Examiner 

 2254-Conduct of Ex Parte Reexamination Proceedings 

 2255-Who Reexamines 

 2256-Prior Art Patents and Printed Publications Reviewed by Examiner in Reexamination 

 2257-Listing of Prior Art 

 2258-Scope of Ex Parte Reexamination 
 2258.01-Use of Previously Cited/Considered Art in Rejections 

 2258.02-Claiming Foreign Priority and Domestic Benefit in Reexamination 

 
 

 2259-Res Judicata and Collateral Estoppel in Reexamination Proceedings 

 2260-Office Actions 
 2260.01-Dependent Claims 

 
 

 2261-Special Status for Action 

 2262-Form and Content of Office Action 

 2263-Time for Response 

 2264-Mailing of Office Action 

 2265-Extension of Time 

 2266-Responses 
 2266.01-Submission Not Fully Responsive to Non-Final Office Action 

 2266.02-Examiner Issues Notice of Defective Paper in Ex Parte Reexamination 

 2266.03-Service of Papers 

 
 

 2267-Handling of Inappropriate or Untimely Filed Papers 

 2268-Petition for Entry of Late Papers for Revival of Reexamination Proceeding 

 2269-Reconsideration 

 2270-Clerical Handling 

 2271-Final Action 
 2271.01-Panel Review 

 
 

 2272-After Final Practice 

 2273-Appeal in Ex Parte Reexamination 

 2274-Appeal Brief 

 2275-Examiner’s Answer 

 2276-Oral Hearing 

 2277-Board Decision 

 2278-Action Following Decision 

 2279-Appeal to Courts 

 2280-Information Material to Patentability in Reexamination Proceeding Filed under 35 U.S.C. 302 

 2281-Interviews in Ex Parte Reexamination Proceedings 

 2282-Notification of Existence of Prior or Concurrent Proceedings and Decisions Thereon 

 2283-Multiple Copending Ex Parte Reexamination Proceedings 

 2284-Copending Ex Parte Reexamination and Interference Proceedings 

 2285-Copending Ex Parte Reexamination and Reissue Proceedings 

 2286-Ex Parte Reexamination and Litigation Proceedings 
 2286.01-Reexamination and Inter Partes Review Proceedings, Post-Grant Review, and Covered Business Method Patent Review 

 
 

 2287-Conclusion of Ex Parte Reexamination Proceeding 
 2287.01-Examiner Consideration of Submissions After a NIRC 

 
 

 2288-Issuance of Ex Parte Reexamination Certificate 

 2289-Reexamination Review 

 2290-Format of Ex Parte Reexamination Certificate 

 2291-Notice of Ex Parte Reexamination Certificate Issuance in Official Gazette 

 2292-Distribution of Certificate 

 2293-Intervening Rights 

 2294-Concluded Reexamination Proceedings 

 2295-Reexamination of a Reexamination 

 2296-USPTO Forms To Be Used In Ex Parte Reexamination 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:50:44