What are the requirements for filing a Pre-Appeal Brief Review Request?

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.

To file a Pre-Appeal Brief Review Request, applicants must meet several requirements:

• File a notice of appeal in compliance with 37 CFR 41.31
• Submit the request with the notice of appeal and before filing an appeal brief
• Use Form PTO/AIA/33, “Pre-Appeal Brief Request for Review” (optional)
• Include arguments in a separate paper titled “Pre-Appeal Brief Request for Review”
• Limit the request to five total pages
• Provide succinct, concise, and focused arguments
• Address only appealable matters, not petitionable issues

The MPEP states: The request must be accompanied by arguments in a separate paper entitled, “Pre-Appeal Brief Request for Review”. The request, not including Form PTO/AIA/33, may not exceed five (5) total pages and should provide a succinct, concise and focused set of arguments for which the review is being requested.

It’s important to note that after-final amendments cannot accompany the request, and non-compliant requests will be dismissed.