37 CFR 1.540 Consideration of responses in ex parte reexamination.
The failure to timely file or serve the documents set forth in § 1.530 or in § 1.535 may result in their being refused consideration. No submissions other than the statement pursuant to § 1.530 and the reply by the ex parte reexamination requester pursuant to § 1.535 will be considered prior to examination.
Although 37 CFR 1.540 would appear to be discretionary in stating that late responses “may result in their being refused consideration,” patent owners and requesters can expect consideration to be refused if the statement and/or reply is not timely filed. 37 CFR 1.540 restricts the number and kind of submissions to be considered prior to examination to those expressly provided for in 37 CFR 1.530 and 37 CFR 1.535. Untimely submissions will ordinarily not be considered. Untimely submissions, other than untimely papers filed by the patent owner after the period set for response, will not be placed of record in the reexamination file but will be returned to the sender.
Any paper for which proof of service is required, which is filed without proof of service, may be denied consideration. Where no proof of service is included, inquiry should be made of the sender by the Central Reexamination Unit as to whether service was in fact made. If no service was made, the paper is placed in the reexamination file but is not considered. See MPEP § 2266.03 and § 2267.