37 CFR § 41.31 — Appeal to Board. (MPEP Coverage Index) – BlueIron IP

This page consolidates MPEP guidance interpreting 37 CFR § 41.31, including 134 rules 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.

Summary

Applicants must file a notice of appeal for any claims that have been twice rejected, adhering to the specific requirements outlined in 37 CFR 41.31.

What this section covers

This section covers how applicants can file an appeal against rejection decisions by filing a notice of appeal.
The core topic includes who may appeal and how to file an appeal, focusing on the notice of appeal process.

Key obligations

Applicants must file a notice of appeal for any claims that have been twice rejected.
Ensure the notice of appeal is filed within the prescribed time limit to avoid missing critical deadlines.
Adhere to the specific requirements outlined in 37 CFR 41.31 for filing a notice of appeal.

Practice notes

Ensure all required information is included in the notice of appeal to comply with 37 CFR 41.31.
Avoid missing the deadline for filing an appeal to ensure compliance with 37 CFR 41.31.

Notice of Appeal Must Follow Examiner's ConsiderationMPEP 1204
Premature Notice of Appeal When Reconsideration RequestedMPEP 1204
Premature Notice of Appeal When Reconsideration RequestedMPEP 1204
Wait for Reconsideration Before AppealingMPEP 1204Required
Filing Appeal Brief as Notice of AppealMPEP 1204
Free Appeal Brief Filing FeeMPEP 1204
No Fee Required for Appeal BriefsMPEP 1204
No Repeated Appeal Fee Payment RequiredMPEP 1204.01Required
Forwarding Fee Requirement After Examiner's AnswerMPEP 1205Required
Appeal Brief Must Not Be Filed Within Reply TimeMPEP 1205.01
Appeal Brief Must Be Filed Within Two Months of Notice of AppealMPEP 1205.01Required
Petition Required for Late RCE After Appeal NoticeMPEP 1205.01Required
No Fee for Appeal Brief FilingMPEP 1205.02
No Payment Required for Free Appeal BriefMPEP 1205.02
Brief Noncompliance After January 23, 2012MPEP 1205.02Required
Include TC Number and Control Number in Appeal DocumentsMPEP 1205.02Recommended
Content of Appeal Briefs Under CFR 41.37MPEP 1205.02
Appeal Notice Must Be Filed Within Last Office Action Response PeriodMPEP 2273
Third Party Requester Cannot AppealMPEP 2273Prohibited
Compliant Appeal Brief After Non-Compliant One Not Considered FailureMPEP 2732Permitted
Period of Adjustment Reduced for Late Appeal BriefMPEP 2732Required
Amendments Subject to Appeal ProvisionsMPEP 706
Premature Notice of Appeal ProhibitedMPEP 1204
Filing Appeal Brief as Notice of AppealMPEP 1204
Filing Appeal Brief Within Two MonthsMPEP 1205
Brief Deficiencies Not Remedied by Oral ArgumentMPEP 1205.02
First Response Includes Two-Month Extension After Final RejectionMPEP 2273
Reexamination Application Reconsidered After ResponseMPEP 706
Reconsideration and Examination After ResponseMPEP 706
Petition for Objections Not Involving Claim RejectionMPEP 706.07Permitted
Reply Must Comply with §1.114 for Final RejectionMPEP 706.07Required
Final Actions in Inter Partes ReexaminationMPEP 706.07
Amendment Touching Merits Permitted After Final ActionMPEP 714.12Permitted
Notice of Appeal Requirement for Rejected ClaimsMPEP 1204Permitted
Notice of Appeal Requirement for Twice-Rejected ClaimsMPEP 1204Permitted
Patent Owner May Appeal After Two RejectionsMPEP 1204Permitted
Notice of Appeal for Rejected ClaimsMPEP 1204Permitted
Notice of Appeal Signature ExemptionMPEP 1204
Presumed Appeal from All Rejected ClaimsMPEP 1204
Settle Non-Merits Issues Before AppealMPEP 1204Required
Extensions for Time Periods in Patent Applications and Ex Parte ReexaminationsMPEP 1204
Prohibition on General Authorization for Appeal FeesMPEP 1204Prohibited
Fees for Reinstated AppealMPEP 1204
Amendment Requirement for Notice of Appeal and BriefMPEP 1204
Permitted Amendment After Final ActionMPEP 1204Permitted
Filing Notice of Appeal After Office ActionMPEP 1204Permitted
Appeal Rights for Patent OwnersMPEP 1204
Patent Owner May Appeal After Second Rejection in Ex Parte ReexaminationMPEP 1204Permitted
Patent Owner Can Appeal After Final Claim Rejection in Ex Parte ReexaminationMPEP 1204Permitted
Patent Owner Must Pay Appeal Fee Within Specified Time PeriodMPEP 1204
Failure to Appeal Results in Reexamination Certificate IssuanceMPEP 1204
Separate Letter for Notice of Appeal RecommendedMPEP 1204
Use Form PTO/AIA/31 for Notice of AppealMPEP 1204Permitted
Appellant Can Check Appeal Status and Receipt Date in Patent CenterMPEP 1204Permitted
Patent Appeal Center Reviews Notice of AppealMPEP 1204
Defective Notice of Appeal Notification RequirementMPEP 1204
Appeal Notice Not Valid Without Twice Rejected ClaimsMPEP 1204
Timely Notice of Appeal and Fee RequiredMPEP 1204
Use PTOL-461 for Notice of Appeal DefectsMPEP 1204Recommended
Communication by Patent Appeal CenterMPEP 1204
Examiner Contact Patent Appeal Center for Post-Entry Defect IdentificationMPEP 1204Recommended
Filing Appeal Brief Without Notice of AppealMPEP 1204Required
Reopening Prosecution Requires New Appeal Notice and BriefMPEP 1204.01Required
No Withdrawal for Pre-Appeal Conference RequestMPEP 1204.02Prohibited
Appellant Must File Appeal Brief Within Two MonthsMPEP 1205Required
Tolling of Reply Period for Appeal Brief FilingMPEP 1205.01
Appellant Must File Appeal Brief Within Two MonthsMPEP 1205.02Required
Permitted Amendments Before Filing Appeal BriefMPEP 1206Permitted
No Post-Appeal Amendments PermittedMPEP 1206Permitted
Examiner May Allow Application Based on Clear Affidavit EvidenceMPEP 1206Permitted
Evidence Not Admissible After Appeal NoticeMPEP 1206Permitted
Improper Markush Grouping RejectionMPEP 2117Permitted
Normal Ex Parte Appeal Procedures Apply Except as NotedMPEP 2273
Period of Adjustment for Patent Term Due to Examination DelayMPEP 2731
Appeal Brief Due Within Three MonthsMPEP 2732
Information Disclosure Statement Must Comply After AppealMPEP 609.04(b)Required
Office Actions Notified to Applicant/Patent OwnerMPEP 706Permitted
Notification of Office Actions After First ExaminationMPEP 706Permitted
Reply Limited to Appeal or Amendment After Final RejectionMPEP 706.07Permitted
Amendments Permitted Before AppealMPEP 714.12Permitted

Wait for Reconsideration Before AppealingMPEP 1204Required
No Repeated Appeal Fee Payment RequiredMPEP 1204.01Required
Request for Pre-Appeal Brief Review Must Accompany Notice of AppealMPEP 1204.02Required
Separate Paper for Pre-Appeal Arguments RequiredMPEP 1204.02Required
Forwarding Fee Requirement After Examiner's AnswerMPEP 1205Required
Appeal Brief Must Be Filed Within Two Months of Notice of AppealMPEP 1205.01Required
Petition Required for Late RCE After Appeal NoticeMPEP 1205.01Required
Brief Noncompliance After January 23, 2012MPEP 1205.02Required
Period of Adjustment Reduced for Late Appeal BriefMPEP 2732Required
Reply Must Comply with §1.114 for Final RejectionMPEP 706.07Required
Settle Non-Merits Issues Before AppealMPEP 1204Required
Filing Appeal Notice After RejectionMPEP 1204Required
Appeal Notice Timing RequirementMPEP 1204Required
Filing Appeal Brief Within Two MonthsMPEP 1204Required
Filing Appeal Brief Without Notice of AppealMPEP 1204Required
Reopening Prosecution Requires New Appeal Notice and BriefMPEP 1204.01Required
Notice of Appeal and Pre-Appeal Brief Review RequirementsMPEP 1204.02Required
Appellant Must File Appeal Brief Within Two MonthsMPEP 1205Required
Appellant Must File Appeal Brief Within Two MonthsMPEP 1205.02Required
Brief Must Address All RejectionsMPEP 1205.02Required
Brief Must Address Original Claims and RecordMPEP 1205.02Required
Requirement to Amend for Claim CancellationMPEP 1205.02Required
Claims Must Be Amended to Remove from Appeal ConsiderationMPEP 1215.03Required
Fee Required for Notice of AppealMPEP 2273Required
All Correspondence Except Appeal Requires SignatureMPEP 502.02Required
Information Disclosure Statement Must Comply After AppealMPEP 609.04(b)Required

Use Form PTO/AIA/33 for Pre-Appeal Brief Review RequestsMPEP 1204.02Permitted
No Amendment Accompanying Pre-Appeal RequestMPEP 1204.02
Limit on Pre-Appeal Brief Review Request LengthMPEP 1204.02Prohibited
Limit Requests to Appealable IssuesMPEP 1204.02
No After Final Amendment with RequestMPEP 1204.02Prohibited
Non-Compliance Results in DismissalMPEP 1204.02Recommended
S-Signature and Handwritten Signatures Allowed for FilingsMPEP 502.02Permitted
Graphic Signature Allowed for FilingMPEP 502.02Permitted
Director Authorized to Adjust Appeal FeesMPEP 1204
Fees for Appeal Proceedings AdjustedMPEP 1204
Free Appeal Brief Fee; Forwarding Fee AddedMPEP 1204
Appeal Notice Filing After Twice Rejected ClaimsMPEP 1204Permitted
Appeal After Twice Rejected ClaimsMPEP 1204
Appeal After Two Rejections PermittedMPEP 1204Permitted
Appeal After Rejection in Continuing ApplicationMPEP 1204Permitted
No Appeal Until RejectionMPEP 1204Prohibited
No Notice of Appeal with RCEMPEP 1204Prohibited
All Rejected Claims Presumed AppealedMPEP 1204
Waiver of Unargued Claim Rejections on AppealMPEP 1204
Claims Must Be Appealed ExplicitlyMPEP 1204
Waiver of Appeal Challenges Results in Jurisdictional IssuesMPEP 1204Recommended
Summary Affirmation of Nonstatutory Double Patenting RejectionsMPEP 1204Permitted
Unsigned Notice of Appeal May Be UnacceptableMPEP 1204Recommended
Filing Appeal After Final Rejection RequiredMPEP 1204
Notice of Appeal Extension AllowedMPEP 1204Permitted
Separate Letter for Notice of Appeal RecommendedMPEP 1204
Use Form PTO/SB/31 for Notice of AppealMPEP 1204Permitted
Free Appeal Brief Filing FeeMPEP 1204
No Requirement to Pay Appeal Brief Fee at $0MPEP 1204
Appeals Governed by CFR 41.60-81MPEP 1204
Appeals Not Governed by CFR 41.30-54MPEP 1204
Self-Addressed Postcard Required for Receipt AcknowledgmentMPEP 1204
Address All Examiner Rejections in Appeal BriefMPEP 1205.02Permitted
Address All Rejection Grounds in Appeal BriefMPEP 1205.02Recommended
Claims Must Be Appealed as FiledMPEP 1205.02Recommended
Claims Must Be Addressed in Appeal BriefMPEP 1205.02
Amendments Before Appeal NoticeMPEP 1206
Evidence Treated as Pre-Notice of AppealMPEP 1206
Amendments Before Notice of AppealMPEP 1206
Appeal Presumed for All ClaimsMPEP 1214.05
Withdrawn Claims Treated as CancellationMPEP 1214.05
Notice of Appeal Need Not Be SignedMPEP 2273

MPEP Section	Rules
MPEP § 1204	Notice of Appeal Must Follow Examiner's ConsiderationMPEP 1204 Premature Notice of Appeal When Reconsideration RequestedMPEP 1204 Premature Notice of Appeal When Reconsideration RequestedMPEP 1204 Wait for Reconsideration Before AppealingMPEP 1204Required Filing Appeal Brief as Notice of AppealMPEP 1204 Free Appeal Brief Filing FeeMPEP 1204 No Fee Required for Appeal BriefsMPEP 1204 Premature Notice of Appeal ProhibitedMPEP 1204 Filing Appeal Brief as Notice of AppealMPEP 1204 Notice of Appeal Requirement for Rejected ClaimsMPEP 1204Permitted Notice of Appeal Requirement for Twice-Rejected ClaimsMPEP 1204Permitted Patent Owner May Appeal After Two RejectionsMPEP 1204Permitted Notice of Appeal for Rejected ClaimsMPEP 1204Permitted Notice of Appeal Signature ExemptionMPEP 1204 Presumed Appeal from All Rejected ClaimsMPEP 1204 Settle Non-Merits Issues Before AppealMPEP 1204Required Extensions for Time Periods in Patent Applications and Ex Parte ReexaminationsMPEP 1204 Director Authorized to Adjust Appeal FeesMPEP 1204 Fees for Appeal Proceedings AdjustedMPEP 1204 Prohibition on General Authorization for Appeal FeesMPEP 1204Prohibited Free Appeal Brief Fee; Forwarding Fee AddedMPEP 1204 Fees for Reinstated AppealMPEP 1204 Filing Appeal Notice After RejectionMPEP 1204Required Appeal Notice Filing After Twice Rejected ClaimsMPEP 1204Permitted Appeal After Twice Rejected ClaimsMPEP 1204 Appeal After Two Rejections PermittedMPEP 1204Permitted Appeal After Rejection in Continuing ApplicationMPEP 1204Permitted No Appeal Until RejectionMPEP 1204Prohibited No Notice of Appeal with RCEMPEP 1204Prohibited Amendment Requirement for Notice of Appeal and BriefMPEP 1204 Permitted Amendment After Final ActionMPEP 1204Permitted Filing Notice of Appeal After Office ActionMPEP 1204Permitted All Rejected Claims Presumed AppealedMPEP 1204 Waiver of Unargued Claim Rejections on AppealMPEP 1204 Claims Must Be Appealed ExplicitlyMPEP 1204 Waiver of Appeal Challenges Results in Jurisdictional IssuesMPEP 1204Recommended Summary Affirmation of Nonstatutory Double Patenting RejectionsMPEP 1204Permitted Unsigned Notice of Appeal May Be UnacceptableMPEP 1204Recommended Appeal Notice Timing RequirementMPEP 1204Required Filing Appeal After Final Rejection RequiredMPEP 1204 Notice of Appeal Extension AllowedMPEP 1204Permitted Separate Letter for Notice of Appeal RecommendedMPEP 1204 Use Form PTO/SB/31 for Notice of AppealMPEP 1204Permitted Filing Appeal Brief Within Two MonthsMPEP 1204Required Free Appeal Brief Filing FeeMPEP 1204 No Requirement to Pay Appeal Brief Fee at $0MPEP 1204 Appeal Rights for Patent OwnersMPEP 1204 Patent Owner May Appeal After Second Rejection in Ex Parte ReexaminationMPEP 1204Permitted Patent Owner Can Appeal After Final Claim Rejection in Ex Parte ReexaminationMPEP 1204Permitted Patent Owner Must Pay Appeal Fee Within Specified Time PeriodMPEP 1204 Failure to Appeal Results in Reexamination Certificate IssuanceMPEP 1204 Appeals Governed by CFR 41.60-81MPEP 1204 Appeals Not Governed by CFR 41.30-54MPEP 1204 Separate Letter for Notice of Appeal RecommendedMPEP 1204 Use Form PTO/AIA/31 for Notice of AppealMPEP 1204Permitted Appellant Can Check Appeal Status and Receipt Date in Patent CenterMPEP 1204Permitted Self-Addressed Postcard Required for Receipt AcknowledgmentMPEP 1204 Patent Appeal Center Reviews Notice of AppealMPEP 1204 Defective Notice of Appeal Notification RequirementMPEP 1204 Appeal Notice Not Valid Without Twice Rejected ClaimsMPEP 1204 Timely Notice of Appeal and Fee RequiredMPEP 1204 Use PTOL-461 for Notice of Appeal DefectsMPEP 1204Recommended Communication by Patent Appeal CenterMPEP 1204 Examiner Contact Patent Appeal Center for Post-Entry Defect IdentificationMPEP 1204Recommended Filing Appeal Brief Without Notice of AppealMPEP 1204Required
MPEP § 1204.01	No Repeated Appeal Fee Payment RequiredMPEP 1204.01Required Reopening Prosecution Requires New Appeal Notice and BriefMPEP 1204.01Required
MPEP § 1204.02	Request for Pre-Appeal Brief Review Must Accompany Notice of AppealMPEP 1204.02Required Use Form PTO/AIA/33 for Pre-Appeal Brief Review RequestsMPEP 1204.02Permitted Separate Paper for Pre-Appeal Arguments RequiredMPEP 1204.02Required No Amendment Accompanying Pre-Appeal RequestMPEP 1204.02 Limit on Pre-Appeal Brief Review Request LengthMPEP 1204.02Prohibited Limit Requests to Appealable IssuesMPEP 1204.02 No After Final Amendment with RequestMPEP 1204.02Prohibited Non-Compliance Results in DismissalMPEP 1204.02Recommended Notice of Appeal and Pre-Appeal Brief Review RequirementsMPEP 1204.02Required No Withdrawal for Pre-Appeal Conference RequestMPEP 1204.02Prohibited
MPEP § 1205	Forwarding Fee Requirement After Examiner's AnswerMPEP 1205Required Filing Appeal Brief Within Two MonthsMPEP 1205 Appellant Must File Appeal Brief Within Two MonthsMPEP 1205Required
MPEP § 1205.01	Appeal Brief Must Not Be Filed Within Reply TimeMPEP 1205.01 Appeal Brief Must Be Filed Within Two Months of Notice of AppealMPEP 1205.01Required Petition Required for Late RCE After Appeal NoticeMPEP 1205.01Required Tolling of Reply Period for Appeal Brief FilingMPEP 1205.01
MPEP § 1205.02	No Fee for Appeal Brief FilingMPEP 1205.02 No Payment Required for Free Appeal BriefMPEP 1205.02 Brief Noncompliance After January 23, 2012MPEP 1205.02Required Include TC Number and Control Number in Appeal DocumentsMPEP 1205.02Recommended Content of Appeal Briefs Under CFR 41.37MPEP 1205.02 Brief Deficiencies Not Remedied by Oral ArgumentMPEP 1205.02 Appellant Must File Appeal Brief Within Two MonthsMPEP 1205.02Required Brief Must Address All RejectionsMPEP 1205.02Required Address All Examiner Rejections in Appeal BriefMPEP 1205.02Permitted Address All Rejection Grounds in Appeal BriefMPEP 1205.02Recommended Brief Must Address Original Claims and RecordMPEP 1205.02Required Requirement to Amend for Claim CancellationMPEP 1205.02Required Claims Must Be Appealed as FiledMPEP 1205.02Recommended Claims Must Be Addressed in Appeal BriefMPEP 1205.02
MPEP § 1206	Permitted Amendments Before Filing Appeal BriefMPEP 1206Permitted No Post-Appeal Amendments PermittedMPEP 1206Permitted Amendments Before Appeal NoticeMPEP 1206 Evidence Treated as Pre-Notice of AppealMPEP 1206 Amendments Before Notice of AppealMPEP 1206 Examiner May Allow Application Based on Clear Affidavit EvidenceMPEP 1206Permitted Evidence Not Admissible After Appeal NoticeMPEP 1206Permitted
MPEP § 1214.05	Appeal Presumed for All ClaimsMPEP 1214.05 Withdrawn Claims Treated as CancellationMPEP 1214.05
MPEP § 1215.03	Claims Must Be Amended to Remove from Appeal ConsiderationMPEP 1215.03Required
MPEP § 2117	Improper Markush Grouping RejectionMPEP 2117Permitted
MPEP § 2273	Appeal Notice Must Be Filed Within Last Office Action Response PeriodMPEP 2273 Third Party Requester Cannot AppealMPEP 2273Prohibited First Response Includes Two-Month Extension After Final RejectionMPEP 2273 Notice of Appeal Need Not Be SignedMPEP 2273 Fee Required for Notice of AppealMPEP 2273Required Normal Ex Parte Appeal Procedures Apply Except as NotedMPEP 2273
MPEP § 2731	Period of Adjustment for Patent Term Due to Examination DelayMPEP 2731
MPEP § 2732	Compliant Appeal Brief After Non-Compliant One Not Considered FailureMPEP 2732Permitted Period of Adjustment Reduced for Late Appeal BriefMPEP 2732Required Appeal Brief Due Within Three MonthsMPEP 2732
MPEP § 502.02	S-Signature and Handwritten Signatures Allowed for FilingsMPEP 502.02Permitted Graphic Signature Allowed for FilingMPEP 502.02Permitted All Correspondence Except Appeal Requires SignatureMPEP 502.02Required
MPEP § 609.04(b)	Information Disclosure Statement Must Comply After AppealMPEP 609.04(b)Required
MPEP § 706	Amendments Subject to Appeal ProvisionsMPEP 706 Reexamination Application Reconsidered After ResponseMPEP 706 Reconsideration and Examination After ResponseMPEP 706 Office Actions Notified to Applicant/Patent OwnerMPEP 706Permitted Notification of Office Actions After First ExaminationMPEP 706Permitted
MPEP § 706.07	Petition for Objections Not Involving Claim RejectionMPEP 706.07Permitted Reply Must Comply with §1.114 for Final RejectionMPEP 706.07Required Final Actions in Inter Partes ReexaminationMPEP 706.07 Reply Limited to Appeal or Amendment After Final RejectionMPEP 706.07Permitted
MPEP § 714.12	Amendment Touching Merits Permitted After Final ActionMPEP 714.12Permitted Amendments Permitted Before AppealMPEP 714.12Permitted

Related Provisions

Based on MPEP Last Modified: 10/30/2024 08:50:22

37 CFR § 41.31 — Appeal to Board. (MPEP Coverage Index) – BlueIron IP

37 CFR § 41.31 Appeal to Board.

Summary

Official MPEP § 41.31 — Appeal to Board.

41.31 Appeal to Board.

Verbatim in MPEP

Required Actions

Key Interpretations

Topics

MPEP Coverage

Related Provisions