[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR41.31]

[Page 388-389]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
  CHAPTER I--UNITED STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF 
                                COMMERCE
 
PART 41_PRACTICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES--Table of Contents
 
                       Subpart B_Ex Parte Appeals
 
Sec. 41.31  Appeal to Board.

    (a) Who may appeal and how to file an 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 Sec. 41.20(b)(1) within the time 
period provided under Sec. 1.134 of this title for reply.
    (2) Every owner of a patent under ex parte reexamination filed under 
Sec. 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 Sec. 41.20(b)(1) within the time period provided under Sec. 1.134 
of this title for reply.
    (3) Every owner of a patent under ex parte reexamination filed under 
Sec. 1.510 of this title on or after November 29, 1999, any of whose 
claims has been finally (Sec. 1.113 of this title) rejected, may

[[Page 389]]

appeal from the decision of the examiner to the Board by filing a notice 
of appeal accompanied by the fee set forth in Sec. 41.20(b)(1) within 
the time period provided under Sec. 1.134 of this title for reply.
    (b) The signature requirement of Sec. 1.33 of this title does not 
apply to a notice of appeal filed under this section.
    (c) An appeal, when taken, must be taken from the rejection of all 
claims under rejection which the applicant or owner proposes to contest. 
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 Sec. 1.136 of 
this title for patent applications and Sec. 1.550(c) of this title for 
ex parte reexamination proceedings.

    Effective Date Note: At 73 FR 32973, June 10, 2008, Sec. 41.31 was 
revised, effective December 10, 2008. For the convenience of the user, 
the revised text is set forth as follows:


 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
  CHAPTER I--UNITED STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF 
                                COMMERCE
 
PART 41_PRACTICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES--Table of Contents
 
                       Subpart B_Ex Parte Appeals
 
Sec. 41.31  Appeal to Board.

    (a) Notice of appeal. An appeal is taken to the Board by filing a 
notice of appeal.
    (b) Fee. The notice of appeal shall be accompanied by the fee 
required by Sec. 41.20(b)(1).
    (c) Time for filing notice of appeal. A notice of appeal must be 
filed within the time period provided under Sec. 1.134 of this title.
    (d) Extensions of time to file notice of appeal. The time for filing 
a notice of appeal is extendable under the provisions of Sec. 1.136(a) 
of this title for applications and Sec. 1.550(c) of this title for ex 
parte reexamination proceedings.
    (e) Non-appealable issues. A non-appealable issue is an issue not 
subject to an appeal under 35 U.S.C. 134. An applicant or patent owner 
dissatisfied with a decision of an examiner on a non-appealable issue 
shall timely seek review by petition before jurisdiction over an appeal 
is transferred to the Board (see Sec. 41.35). Failure to timely file a 
petition seeking review of a decision of the examiner related to a non-
appealable issue may constitute a waiver to having that issue considered 
in the application or reexamination on appeal.