When can I file a Notice of Appeal?

You can file a Notice of Appeal after any of your claims has been twice rejected, regardless of whether the rejection is final or not. The MPEP states: “A notice of appeal may be filed after any of the claims has been twice rejected, regardless of whether the claim(s) has/have been finally rejected.“

It’s important to note that the “twice rejected” requirement doesn’t have to be within the same application. As explained in the MPEP, “The limitation of ‘twice rejected’ does not have to be related to a particular application. See Ex Parte Lemoine, 46 USPQ2d 1420, 1423 (Bd. Pat. App. & Inter. 1994) (‘so long as the applicant has twice been denied a patent, an appeal may be filed’).“

However, you cannot file a Notice of Appeal in a continuing application or after filing a Request for Continued Examination (RCE) until the application is under a rejection.

To learn more:

• Notice of Appeal
• Patent Rejection
• Twice Rejected
• Continuing Application
• RCE