1204.03 Interviews After Notice of Appeal [R-11.2013]
As indicated in MPEP § 713.09, one interview after final rejection is normally permitted. Where a notice of appeal is filed in an application or ex parte reexamination, the phrase “after final rejection” includes only the time from the mailing of the final rejection through the filing of an appeal brief. However, as indicated in the notice “Pre-Appeal Brief Conference Pilot Program,” 1296 OG 76 (July 12, 2005), no interviews will be granted from the filing of a request for pre-appeal review through issuance of a decision on the request. See MPEP § 1204.02.
Except in unusual situations, no interview is permitted after the appeal brief is filed. See MPEP § 713.05. Where an appeal brief is filed in an application or ex parte reexamination, the phrase “after the appeal brief is filed” includes the time from filing of the appeal brief through the first of a decision by the Board, the mailing by the examiner of a rejection or other paper with a response period, the mailing of a notice of defective appeal brief, or the mailing of a notice of allowance.
Effective March 19, 2013, 37 CFR 41.20(b)(4) sets a fee to forward an appeal to the Board after the mailing of an examiner’s answer. While appellants may desire an interview after mailing of an examiner’s answer and prior to payment of this fee, interviews during this time period are likely to confuse the record on appeal and are not permitted except in unusual situations. These unusual circumstances may include situations where appellant wishes to cancel all appealed claims and proceed to issue with claims previously indicated as allowable, or where the examiner is convinced that some but not all of the previously rejected claims are in condition for allowance.
After the time specified in 37 CFR 41.35(a), the application or ex parte reexamination is no longer under the jurisdiction of the examiner. While the examiner has no jurisdiction over a proceeding after the time set in 37 CFR 41.35(a), the Director of the USPTO or appropriate delegate has the authority to remand the proceeding to the examiner under 37 CFR 41.35(c). Requests for interviews on cases under the jurisdiction of the Board should be granted only with specific approval of the Technology Center Director upon a showing in writing of extraordinary circumstances that justify a remand from the Board to the examiner in order to conduct an interview.