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