1211 Remand by Director or Board [R-08.2017]
Both the Director and the Board have the authority to remand a case to the examiner when necessary. See 37 CFR 41.35(c) and (e), and 37 CFR 41.40(a). As specified by 37 CFR 41.50(e), a remand by the Board is not appealable (i.e. not final for purposes of judicial review). In any remand, jurisdiction over the appeal is transferred from the Board back to the examiner. Following the remand, the examiner should take action consistent with the remand order. In the absence of other guidance in the remand order, the examiner should take an action described in MPEP § 1207.
For example, the Director may remand a case for consideration of a new ground of rejection pursuant to 37 CFR 41.35(c) where there has been a change in the law that calls for a new ground of rejection to be entered. Such a remand may require the examiner to prepare a substitute examiner’s answer to enter the new ground of rejection.