What are the consequences of not filing a timely notice of appeal in ex parte reexamination?

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.

If a patent owner fails to file a timely notice of appeal or does not pay the appropriate appeal fee in ex parte reexamination, there are significant consequences. According to MPEP 2273, “If the patent owner does not timely file a notice of appeal and/or does not timely file the appropriate appeal fee, the patent owner will be notified that the appeal is dismissed. Form PTOL-468 may be used to provide the notification. The reexamination prosecution is then terminated, and a Notice of Intent to Issue Ex Parte Reexamination Certificate (NIRC) will subsequently be issued indicating the status of the claims at the time of final rejection (or after the second rejection of the claims, where an appeal was taken from that action without waiting for a final rejection).” This means that failing to properly file an appeal can result in the termination of the reexamination proceeding and the issuance of a reexamination certificate based on the examiner’s last decision.