U.S. Patents and the Appellate Process

If you are not happy with the decision made about your patent application in the U.S., you can appeal the decision with the Board of Patent Appeals and Interferences (BPAI).

The Board of Patent Appeals and Interferences shall, on written appeal of an applicant, review adverse decisions of examiners upon applications for patents and shall determine priority and patentability of invention in interferences.

35 U.S.C. Section 6, establishes the Board’s membership as the Director, the Deputy Director, the Commissioner for Patents, the Commissioner for Trademarks, and the Administrative Patent Judges. The Chief Judge is Michael Fleming.

The Board’s two main responsibilities include: (1) the review of ex parte appeals from adverse decisions of examiners in those situations where a written appeal is taken by a dissatisfied patent applicant and (2) the review of interferences to “determine priority” (that is, decide who is the first inventor) whenever an applicant claims the same patentable invention which is already claimed by another applicant or patentee. Each appeal and interference is heard by a merits panel of at least three members of the Board.

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