37 CFR § 41.40 - Tolling of time period to file a reply brief.
---
identifier: "/us/cfr/t37/s41.40"
source: "ecfr"
legal_status: "authoritative_unofficial"
title: "37 CFR § 41.40 - Tolling of time period to file a reply brief."
title_number: 37
title_name: "Patents, Trademarks, and Copyrights"
section_number: "41.40"
section_name: "Tolling of time period to file a reply brief."
chapter_name: "UNITED STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE"
subchapter_number: "A"
subchapter_name: "GENERAL"
part_number: "41"
part_name: "PRACTICE BEFORE THE PATENT TRIAL AND APPEAL BOARD"
positive_law: false
currency: "2026-03-24"
last_updated: "2026-03-24"
format_version: "1.1.0"
generator: "[email protected]"
authority: "35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 23, 32, 41, 134, 135, and Public Law 112-29."
regulatory_source: "69 FR 50003, Aug. 12, 2004, unless otherwise noted."
cfr_part: "41"
---
# 41.40 Tolling of time period to file a reply brief.
(a) *Timing.* Any request to seek review of the primary examiner's failure to designate a rejection as a new ground of rejection in an examiner's answer must be by way of a petition to the Director under § 1.181 of this title filed within two months from the entry of the examiner's answer and before the filing of any reply brief. Failure of appellant to timely file such a petition will constitute a waiver of any arguments that a rejection must be designated as a new ground of rejection.
(b) *Petition granted and prosecution reopened.* A decision granting a petition under § 1.181 to designate a new ground of rejection in an examiner's answer will provide a two-month time period in which appellant must file a reply under § 1.111 of this title to reopen the prosecution before the primary examiner. On failure to timely file a reply under § 1.111, the appeal will stand dismissed.
(c) *Petition not granted and appeal maintained.* A decision refusing to grant a petition under § 1.181 of this title to designate a new ground of rejection in an examiner's answer will provide a two-month time period in which appellant may file only a single reply brief under § 41.41.
(d) *Withdrawal of petition and appeal maintained.* If a reply brief under § 41.41 is filed within two months from the date of the examiner's answer and on or after the filing of a petition under § 1.181 to designate a new ground of rejection in an examiner's answer, but before a decision on the petition, the reply brief will be treated as a request to withdraw the petition and to maintain the appeal.
(e) *Extensions of time.* 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.
[76 FR 72298, Nov. 22, 2011]