What are Ex parte appeals?
If a patent examiner rejects a patent application twice or issues a final rejection, the applicant may request that the Board review the rejection. The Board shall designate such an applicant as an appellant.
In addition, the appellant may also request an oral hearing before the Board, known as an oral hearing.
The Board will review the briefs, attend the oral hearing, and then issue a written decision. The Board will either affirm the examiner’s denial or reverse it in whole or in part. If the appellant is unsuccessful in obtaining a reversal of the Board’s denial of the examiner, the appellant may seek reconsideration by the Board or review by a federal district court, or both, and appeal the Board’s decision to the U.S. Court of Appeals for the Federal Circuit.
Ex Parte Appeals Lawyer
An examining attorney’s decision may be appealed to the Trademark Trial and Appeal Board (PTAB). An examiner who denies registration issues an Office Action. The Office Action will detail any requirements and/or denials that prevent registration of the application. For the matter to be appealed, the denial must be “final” and the requirement must be a “substantive” matter and not a technical matter. Typically, petitions to the Director relate to technical matters.
A frequently asked question in our practice is, “What is a final denial?” This is either an Office Action marked “Final Rejection,” or a second rejection for the same reasons as the first rejection, or a repeated requirement. If an appeal is taken after a final denial, the applicant’s ex parte appeals lawyer should file a notice of appeal and pay the appeal fee within six months of the final denial. Failure to timely file the notice of appeal and fee with the Board will result in the trademark application being deemed abandoned. However, if the failure to file the notice of appeal is inadvertent, the applicant may file a petition to reopen the case. It should be noted that a petition to reopen cannot be filed if the applicant filed a motion for reconsideration and it was denied and the applicant then failed to timely file a notice of appeal.
The Board shall issue a written decision on the appeal based on the evidence before it, the arguments of the appellant, and the arguments of the examining attorney. If either party is dissatisfied with the decision, he or she may request a new hearing, reconsideration, or modification of the decision. If the party is still dissatisfied, it may either appeal the Board’s decision to the United States Court of Appeals for the Federal Circuit or seek review of the Board’s decision by filing a civil action in the United States District Court.
Preparing an ex parte appeal brief
If you are an independent inventor who wants to appeal a patent examiner’s rejection of your claims without the assistance of an attorney, you have come to the right place.
If any of the claims in a patent application have been twice rejected or finally rejected by a patent examiner, you may seek review as an appellant before the Patent and Trial Appeal Board (PTAB).
The appellant and the examiner may file written materials, called “briefs,” to explain their respective positions. The process begins with an appellant filing a “notice of appeal,” followed by an appellant’s “notice of appeal brief” The examiner typically responds with an “answer” addressing the appellant’s arguments in the “notice of appeal brief” The appellant may, but is not required to, subsequently file an “answer brief” to address the “answer”
Ex Parte Judgement
At the full hearing, appellant and the examiner will present evidence in the form of testimony and other documents you may have, such as photographs, hospital records, and police reports.
The defendant may appeal the ex parte order. The judge must decide whether to issue a permanent order to replace the ex parte order. If the judge does not think the defendant needs a permanent order, the judge will deny the petition and lift or vacate the ex parte restraining order.