41.52—Rehearing.
(a)
(1)
Appellant may file a single request for rehearing within two months of the date of the original decision of the Board. No request for rehearing from a decision on rehearing will be permitted, unless the rehearing decision so modified the original decision as to become, in effect, a new decision, and the Board states that a second request for rehearing would be permitted. The request for rehearing must state with particularity the points believed to have been misapprehended or overlooked by the Board. Arguments not raised in the briefs before the Board and evidence not previously relied upon in the brief and any reply brief(s) are not permitted in the request for rehearing except as permitted by paragraphs (a)(2) and (a)(3) of this section. When a request for rehearing is made, the Board shall render a decision on the request for rehearing. The decision on the request for rehearing is deemed to incorporate the earlier opinion reflecting its decision for appeal, except for those portions specifically withdrawn on rehearing, and is final for the purpose of judicial review, except when noted otherwise in the decision on rehearing.
(2)
Upon a showing of good cause, appellant may present a new argument based upon a recent relevant decision of either the Board or a Federal Court.
(3)
New arguments responding to a new ground of rejection made pursuant to § 41.50(b) are permitted.
(b)
Extensions of time under § 1.136(a) of this title for patent applications are not applicable to the time period set forth in this section. See § 1.136(b) of this title for extensions of time to reply for patent applications and § 1.550(c) of this title for extensions of time to reply for ex parte reexamination proceedings.
Code of Federal Regulations
Effective Date Note:
At 73 FR 32977, June 10, 2008, § 41.52 was revised, effective December 10, 2008. Per a subsequent final rule published at 73 FR 74972, Dec. 10, 2008, the effective date of this rule was delayed indefinitely.
For the convenience of the user, the revised text is set forth as follows:
§ 41.52
Rehearing.
(a) Request for rehearing authorized. An appellant may file a single request for rehearing.
(b) Time for filing request for rehearing. Any request for rehearing must be filed within two months from the date of the decision mailed by the Board.
(c) Extension of time to file request for rehearing. A request for an extension of time shall be presented as a petition under § 41.3 of this part.
(d) Content of request for rehearing. The form of a request for rehearing is governed by the requirements of § 41.37(v) of this subpart, except that a request for rehearing may not exceed 10 pages, excluding any table of contents, table of authorities, and signature block. A request to exceed the page limit shall be made by petition under § 41.3
at least ten calendar days before the request for rehearing is due. A request for rehearing must contain, under appropriate headings and in the order indicated, the following items:
(1) Table of contents—see
§ 41.37(i) of this subpart.
(2) Table of authorities—see
§ 41.37(j) of this subpart.
(3) [Reserved]
(4) Argument—see paragraph (f) of this section.
(e) [Reserved]
(f) Argument. A request for rehearing shall state with particularity the points believed to have been misapprehended or overlooked by the Board. In filing a request for rehearing, the argument shall adhere to the following format: “On page x, lines y-z of the Board's opinion, the Board states that (set out what was stated). The point misapprehended or overlooked was made to the Board in (identify paper, page and line where argument was made to the Board) or the point was first made in the opinion of the Board. The response is (state response).” As part of each response, appellant shall refer to the page number and line or drawing number of a document in the Record. A general restatement of the case will not be considered an argument that the Board has misapprehended or overlooked a point. A new argument cannot be made in a request for rehearing, except:
(1) New ground of rejection. Appellant may respond to a new ground of rejection entered pursuant to § 41.50(d)(2) of this subpart.
(2) Recent legal development. Appellant may rely on and call the Board's attention to a recent court or Board opinion which is relevant to an issue decided in the appeal.
(g) No amendment or new evidence. No amendment or new evidence may accompany a request for rehearing.
(h) Decision on rehearing. A decision will be rendered on a request for rehearing. The decision on rehearing is deemed to incorporate the underlying decision sought to be reheard except for those portions of the underlying decision specifically modified on rehearing. A decision on rehearing is final for purposes of judicial review, except when otherwise noted in the decision on rehearing.