C.F.R. » Title 37 » CHAPTER I—UNITED STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE › SUBCHAPTER A—GENERAL › PART 41—PRACTICE BEFORE THE PATENT TRIAL AND APPEAL BOARD › Subpart B—Ex Parte Appeals

37 C.F.R. § 41.31

Appeal to Board

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(a) Who may appeal and how to file an appeal. An appeal is taken to the Board by filing a notice of appeal.

(1) Every applicant, any of whose claims has been twice rejected, may appeal from the decision of the examiner to the Board by filing a notice of appeal accompanied by the fee set forth in § 41.20(b)(1) within the time period provided under § 1.134 of this title for reply.

(2) Every owner of a patent under ex parte reexamination filed under § 1.510 of this title before November 29, 1999, any of whose claims has been twice rejected, may appeal from the decision of the examiner to the Board by filing a notice of appeal accompanied by the fee set forth in § 41.20(b)(1) within the time period provided under § 1.134 of this title for reply.

(3) Every owner of a patent under ex parte reexamination filed under § 1.510 of this title on or after November 29, 1999, any of whose claims has been finally (§ 1.113 of this title) rejected, may appeal from the decision of the examiner to the Board by filing a notice of appeal accompanied by the fee set forth in § 41.20(b)(1) within the time period provided under § 1.134 of this title for reply.

(b) The signature requirements of §§ 1.33 and 11.18(a) of this title do not apply to a notice of appeal filed under this section.

(c) An appeal, when taken, is presumed to be taken from the rejection of all claims under rejection unless cancelled by an amendment filed by the applicant and entered by the Office. Questions relating to matters not affecting the merits of the invention may be required to be settled before an appeal can be considered.

(d) The time periods set forth in paragraphs (a)(1) through (a)(3) of this section are extendable under the provisions of § 1.136 of this title for patent applications and § 1.550(c) of this title for ex parte reexamination proceedings.

[69 FR 50003, Aug. 12, 2004, as amended at 76 FR 72296, Nov. 22, 2011]
Notes of Decisions
Cited in 4 cases (2 in the last 5 years), 2015–2025 · leading case: Hyatt v. United States Pat. & Trademark Off., 146 F. Supp. 3d 771 (E.D. Va. 2015).
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Hyatt v. United States Pat. & Trademark Off., 146 F. Supp. 3d 771 (E.D. Va. 2015). · cites it 2× “§ 134 ; 37 C.F.R. § 41.31 . To appeal, the applicant must file a notice of appeal and then an appeal brief within two months of filing the notice.”
Hyatt v. United States Pat. & Trademark Off., 110 F. Supp. 3d 644 (E.D. Va. 2015). · cites it 2× “§ 134 ; 37 C.F.R. § 41.31 . To appeal, the applicant must file a notice of appeal and then an appeal brief within two months of filing the notice.”
Norix Grp., Inc. v. Corr. Tech., Inc. (N.D. Ill. 2021). “§ 141 ; 37 C.F.R. § 41.31 (a), there will be no valid ’150 patent for Cortech to have infringed.”
Godox Photo Equip. Co. Ltd. v. Profoto Aktiebolag (W.D. Wash. 2025). “§ 134 ; 37 C.F.R. § 41.31 . Profoto must respond 11 to the Final Office Action within two months, which may be extended for two additional months 12 or, if supported by sufficient cause, even longer.”
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