As a reminder, the new USPTO Appeal Brief Rules will go into effect December 10, 2008. In the meantime, ambitious appellants have already filed Briefs under the new format, in anticipation of the change. Unfortunately, some of those briefs were flagged for being non-compliant.
In response, the PTO issued a clarification that formally allows submissions under the new rules:
[A]ppeal briefs filed before December 10, 2008, must either comply with current 37 CFR 41.37 (in effect before December 10, 2008) or revised 37 CFR 41.37 (in effect on or after December 10, 2008). Appeal briefs filed on or after December 10, 2008, must comply with the revised 37 CFR 41.37. A certificate of mailing or transmission in compliance with 37 CFR 1.8 will be applicable to determine whether the appeal brief was filed prior to the effective date in order to determine which rule applies. For any appeal brief filed in the new format under revised 37 CFR 41.37, the Office will provide an examiner’s answer in the new format under revised 37 CFR 41.39 if the
appeal is maintained.
Any appellant who has received a notice of non-compliant appeal brief may request that the notice of non-compliant appeal brief be withdrawn if the sole reason for noncompliance is that the appeal brief was presented in the new format.
Read the notice here.