Can an appellant file a Request for Continued Examination (RCE) after a Board decision?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Yes, an appellant can file a Request for Continued Examination (RCE) after a Board decision, but there are specific timing considerations to keep in mind.

The MPEP states: “An RCE (accompanied by the appropriate fee and a submission) may be filed after a decision by the Board, but before the filing of a Notice of Appeal to the Court of Appeals for the Federal Circuit (Federal Circuit) or the commencement of a civil action in federal district court.“

Additionally, it’s important to note the time frame for filing an RCE: “The time period for filing a notice of appeal to the Federal Circuit or for commencing a civil action ends sixty-three (63) days after the date of the final Board decision. See 37 CFR 90.3 and MPEP § 1216. Thus, an RCE filed within this sixty-three day time period and before the filing of a notice of appeal to the Federal Circuit or the commencement of a civil action would be timely filed.“

Filing an RCE after a Board decision means that the Board’s decision becomes the law of the case, and prosecution will continue before the examiner.