¶ 12.179.02 Dismissal Following New Ground(s) of Rejection in Examiner’s Answer
Appellant failed to timely respond to the examiner’s answer mailed on [1] that included a new ground of rejection. Under 37 CFR 41.39 (b), 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, file either: (1) a request that prosecution be reopened by filing a reply under 37 CFR 1.111; or (2) a request that the appeal be maintained by filing a reply brief under 37 CFR 41.41, addressing each new ground of rejection, to avoid sua sponte dismissal of the appeal as to the claims subject to the new ground of rejection. In view of appellant’s failure to file a reply under 37 CFR 1.111 or a reply brief within the time period required by 37 CFR 41.39, the appeal as to claims [2] is dismissed, and these claims are canceled.
Only claims [3] remain in the application. The appeal continues as to these remaining claims. The application will be forwarded to the Board after mailing of this communication.
Examiner Note:
1. In bracket 1, insert the mailing date of the examiner’s answer.
2. In bracket 2, insert the claim numbers of the claims subject to the new ground of rejection.
3. In bracket 3, insert the claim numbers of the claims that are not subject to the new ground of rejection.