1211.03 Remand To Consider Affidavits or Declarations [R-11.2013]
Affidavits or declarations filed with the filing of a notice of appeal but before jurisdiction passes to the Board (see MPEP § 1206) will be considered for entry only if the appellant makes the necessary showing under 37 CFR 1.116(e) as to why they are necessary and were not earlier presented. Authority from the Board is not necessary to consider such affidavits or declarations. Affidavits or declarations filed after a final rejection and prior to a notice of appeal are handled as provided in MPEP §§ 715.09, 716, and 716.01. If such evidence has not been treated by the examiner, the Board or the Director may remand the proceeding to permit the examiner to consider such evidence.
In the case of affidavits or declarations filed after the filing of a notice of appeal, but before a jurisdiction passes to the Board under 37 CFR 41.35, the examiner is without authority to consider the same unless the examiner determines that the affidavit or other evidence overcomes all rejections under appeal and that a showing of good and sufficient reasons why the affidavit or other evidence is necessary and was not earlier presented have been made. See MPEP § 1206.
It is not the custom of the Board to remand affidavits or declarations offered in connection with a request for rehearing of its decision where no rejection has been made under 37 CFR 41.50(b). Affidavits or declarations submitted for this purpose, not remanded to the examiner, are considered only as arguments. In re Martin, 154 F.2d 126, 69 USPQ 75 (CCPA 1946).