---
kind: "section"
citation: "37 C.F.R. § 41.40"
title: "37"
number: "41.40"
heading: "Tolling of time period to file a reply brief."
url: "https://uscodex.org/cfr/37/41.40"
---

# §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](/cfr/37/1.181.md) 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](/cfr/37/1.181.md) 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](/cfr/37/1.111.md) of this title to reopen the prosecution before the primary examiner. On failure to timely file a reply under [§ 1.111](/cfr/37/1.111.md), the appeal will stand dismissed.
- (c) **Petition not granted and appeal maintained.** A decision refusing to grant a petition under [§ 1.181](/cfr/37/1.181.md) 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](/cfr/37/41.41.md).
- (d) **Withdrawal of petition and appeal maintained.** If a reply brief under [§ 41.41](/cfr/37/41.41.md) 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](/cfr/37/1.181.md) 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)](/cfr/37/1.136.md?p=a) of this title for patent applications are not applicable to the time period set forth in this section. See [§ 1.136(b)](/cfr/37/1.136.md?p=b) of this title for extensions of time to reply for patent applications and [§ 1.550(c)](/cfr/37/1.550.md?p=c) of this title for extensions of time to reply for ex parte reexamination proceedings.

## Notes

### Amendments

[76 FR 72298, Nov. 22, 2011]

### Authority

Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 23, 32, 41, 134, 135, and Public Law 112-29.

### Source

Source: 69 FR 50003, Aug. 12, 2004, unless otherwise noted.

### Amendments

[76 FR 72298, Nov. 22, 2011]