What options are available if an appeal is dismissed but the application is not abandoned?

If an appeal is dismissed but the application is not abandoned (due to at least one allowed claim), the applicant has several options. According to MPEP 1205.01:

“If the appeal is dismissed, but the application is not abandoned because there is at least one allowed claim, the applicant may file a petition to reinstate the claims and the appeal, but a showing equivalent to that in a petition to revive under 37 CFR 1.137 is required.”

The applicant can:

1. File a petition to reinstate the claims and the appeal, with a showing equivalent to that required in a petition to revive.
2. File a Request for Continued Examination (RCE) under 37 CFR 1.114 with a submission and the required fee.
3. File an appeal brief and pay the appeal brief fee (currently $0) to reinstate the appeal.

It’s important to note that a proper brief must be filed before the petition will be considered on its merits. If the dismissal of the appeal is believed to be in error, filing a petition pointing out the error may be sufficient.

For more details on the revival process, refer to MPEP § 711.03(c).

To learn more:

• Appeal Dismissal
• Petition to Reinstate
• Request for Continued Examination
• Patent Prosecution