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If a patent examiner twice rejects or issues a final rejection in a patent application, the applicant can seek review of the rejection by the Board. The Board calls such an applicant by the title appellant.
An appellant and the examiner may submit written papers called briefs to explain their respective positions. An appeal brief contains certain required information to help the Board understand the invention and the arguments for patentability. For help in preparing an appeal brief, the Board offers an appeal brief template and instructions to guide appellants on the Preparing an ex parte appeal brief webpage.
In addition, the appellant also may request to make an oral presentation to the Board in what is called an oral hearing.
The Board will review the briefs, attend the oral hearing, and then render a written decision. The Board will either affirm or reverse, in part or whole, the examiner’s rejection. If the appellant is not successful in securing reversal of the examiner’s rejection from the Board, the appellant may seek reconsideration by the Board or federal district court review or both and may appeal the Board's decision to the U.S. Court of Appeals for the Federal Circuit.
The appeal process involves nine steps and is explained in these videos:
- Inventor Info Chat (Appealing a final rejection to the Patent Trial and Appeal Board: What you need to know, August 15, 2019)
- Boardside chat (Appeals made easy, November 7, 2019)
Learn more about ex parte appeals on the PTAB's Appeals webpage. Also, feel free to use our resources for independent inventors and those new to appeals.