Disagreements between Examiners and applicants that cannot be resolved by negotiation are resolved at a higher level in the USPTO. Two procedures are used: appeals and petitions. The appeals procedure is used to resolve all issues that concern the rejection of claims by the Examiner. The appeal is made to the Board of Patent Appeals and Interferences. An applicant puts the USPTO on notice that he/she is planning to appeal the rejection(s) of one or more claims by filing a notice of appeal. The notice of appeal must be filed within the period of response set in the last Office action. If the Office action is (1) a final action, (2) a response period of 3 months has been set by the Examiner (3) a first response is filed within 2 months of the mailing date of the final action and (4) an advisory action (stating that the first response has not placed the claim(s) in condition for allowance) is mailed by the Examiner after the end of the 3-month response period, then the notice of appeal may be filed up to 5 months after the mailing date of the advisory action by payment of one or more one-month extension fees. However, in no event can the notice of appeal filed later than 6 months after the mailing date of the final Office action.
The Office action being appealed can also be a non-final action in which one or more claims has been rejected at least twice. In this situation, the notice of appeal must generally be filed no later than 3 months after the mailing date of the non-final action, unless a different period for response is stipulated in the Office action. The period of response may be extended by up to 5 months by payment of extension fees, however, in no event can the notice of appeal be filed later than 6 months after the mailing date of the non-final Office action.
Law - Notice of Appeal To Board