Having your patent application rejected (sometimes multiple times) may feel like the end of the road. However, once an impasse is reached with a patent examiner, there is the option to go to appeal. This leads to the patent application being reviewed by a panel of 3 administrative judges.
You may file for appeal after two rejections of your patent application, though it can also be done after additional rejections.
The appeal brief
After filing a Notice of Appeal, the applicant has two months before an Appeal Brief is due. If necessary, the deadline can be extended by additional months. The Brief includes the issues for the judge to consider. If you do not file an appeal brief with allowed claims, the judge can dismiss your appeal.
The examiner’s answer
The examiner is required to provide a formal response to the appeal brief. He or she looks at every argument and responds to each one and will either maintain or modify the rejection. The examiner’s answer must include withdrawn rejections, grounds of the rejection he or she reviewed, new grounds for rejection and responses to any arguments.
Rehearing
If the appeal does not go well or the applicant believes the appeal board overlooked one or more points, you can request a rehearing. You cannot bring new evidence or arguments to the table during the rehearing.
