37 CFR § 41.61 — Notice of appeal and cross appeal to (MPEP Coverage Index) – BlueIron IP
37 CFR § 41.61 Notice of appeal and cross appeal to
Source: Patent Rule (37 CFR)BlueIron Update:
This page consolidates MPEP guidance interpreting 37 CFR § 41.61, including 2 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
The Notice of appeal and cross appeal to is a formal document filed after final rejection in an application or ex parte reexamination, detailing the grounds for appeal and any additional cross appeals.
What this section covers
- Defines the Notice of appeal and cross appeal as a formal document required after a final rejection in an application or ex parte reexamination.
Key obligations
- Requires practitioners to file a Notice of Appeal after final rejection, detailing the grounds for appeal.
- Mandates including a cross appeal if applicable, to challenge the rejection of claims in addition to appealing the entire application.
- Ensures compliance with 37 CFR 41.61, detailing the format and content of the Notice of Appeal.
Practice notes
- Tips practitioners to clearly state all grounds of appeal in the Notice of Appeal to avoid delays and ensure thorough consideration.
- Reminds practitioners to file the Notice of Appeal promptly, as delays can result in loss of appeal rights.
Official MPEP § 41.61 — Notice of appeal and cross appeal to
Source: USPTOLast Modified: 10/30/2024 08:50:22
41.61 Notice of appeal and cross appeal to Board.
- (a)
- (1) Upon the issuance of a Right of Appeal Notice under § 1.953 of this title, the owner may appeal to the Board with respect to the final rejection of any claim of the patent by filing a notice of appeal within the time provided in the Right of Appeal Notice and paying the fee set forth in § 41.20(b)(1) .
- (2) Upon the issuance of a Right of Appeal Notice under § 1.953 of this title, the requester may appeal to the Board with respect to any final decision favorable to the patentability, including any final determination not to make a proposed rejection, of any original, proposed amended, or new claim of the patent by filing a notice of appeal within the time provided in the Right of Appeal Notice and paying the fee set forth in § 41.20(b)(1) .
- (b)
- (1) Within fourteen days of service of a requester’s notice of appeal under paragraph (a)(2) of this section and upon payment of the fee set forth in § 41.20(b)(1) , an owner who has not filed a notice of appeal may file a notice of cross appeal with respect to the final rejection of any claim of the patent.
- (2) Within fourteen days of service of an owner’s notice of appeal under paragraph (a)(1) of this section and upon payment of the fee set forth in § 41.20(b)(1) , a requester who has not filed a notice of appeal may file a notice of cross appeal with respect to any final decision favorable to the patentability, including any final determination not to make a proposed rejection, of any original, proposed amended, or new claim of the patent.
- (c) The notice of appeal or cross appeal in the proceeding must identify the appealed claim(s) and must be signed by the owner, the requester, or a duly authorized attorney or agent.
- (d) An appeal or cross appeal, when taken, must be taken from all the rejections of the claims in a Right of Appeal Notice which the patent owner proposes to contest or from all the determinations favorable to patentability, including any final determination not to make a proposed rejection, in a Right of Appeal Notice which a requester proposes to contest. Questions relating to matters not affecting the merits of the invention may be required to be settled before an appeal is decided.
- (e) The time periods for filing a notice of appeal or cross appeal may not be extended.
- (f) If a notice of appeal or cross appeal is timely filed but does not comply with any requirement of this section, appellant will be notified of the reasons for non-compliance and given a non-extendable time period within which to file an amended notice of appeal or cross appeal. If the appellant does not then file an amended notice of appeal or cross appeal within the set time period, or files a notice which does not overcome all the reasons for non-compliance stated in the notification of the reasons for non-compliance, that appellant’s appeal or cross appeal will stand dismissed.
[Added, 69 FR 49959, Aug. 12, 2004, effective Sept. 13, 2004]
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- Inter Partes Reexamination
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