What happens if a Notice of Appeal is filed after the filing of an RCE?

If a Notice of Appeal is filed after the filing of an RCE but before a first Office action is issued, the Notice of Appeal is defective. According to MPEP 1204.01, “If appellant files an RCE under 37 CFR 1.114 , thereby entering the RCE and prosecution, and then subsequently files a notice of appeal without first getting an Office action, that notice of appeal is defective.” In such cases, the Office will notify the applicant that the appeal is dismissed and prosecution is continued.

To learn more:

• RCE
• Notice of Appeal
• Defective Appeal
• Patent Prosecution