If a reply is filed with a notice of appeal in response to a second non-final rejection, how would the Office treat the reply and the notice of appeal?
The Office will treat the reply under 37 CFR 1.111. For example, if the reply is a fully responsive reply to the second non-final rejection that presents an amendment under 37 CFR 1.121, an affidavit or declaration, and/or arguments, the reply would be entered and considered by the examiner. If the reply does not place the application in condition for allowance, the Office will mail an Office action (that may include a non-final rejection or a final rejection as appropriate, but not an advisory action) in response to the reply. The Office will treat the notice of appeal as defective because it was prematurely filed before the examiner considers the reply under 37 CFR 1.111. See Question and Answer C7. C9. If applicant files a request for continued examination (RCE) under 37 CFR 1.114 with a submission and a notice of appeal after the mailing of a final Office action, how would the Office treat the RCE and the notice of appeal? [posted 9Sept2005] If the RCE is accompanied by a proper su
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