MPEP § 1202 — MPEP § 1202
Current through: 2022-07-01

1202-Composition of Board 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 1200 

 Section 1202 
 

 
 
 
 
 
 1202 Composition of Board [R-08.2017]

 35 U.S.C.
 6 provides for a Patent Trial and Appeal Board as follows:
 

 
 35 U.S.C. 6 
 Patent Trial and Appeal Board. 

 
 (a) ESTABLISHMENT AND COMPOSITION.— There shall be in the Office a
 Patent Trial and Appeal Board. The Director, the Deputy Director, the Commissioner
 for Patents, the Commissioner for Trademarks, and the administrative patent judges
 shall constitute the Patent Trial and Appeal Board. The administrative patent
 judges shall be persons of competent legal knowledge and scientific ability who
 are appointed by the Secretary, in consultation with the Director. Any reference
 in any Federal law, Executive order, rule, regulation, or delegation of authority,
 or any document of or pertaining to the Board of Patent Appeals and Interferences
 is deemed to refer to the Patent Trial and Appeal Board.
 

 (b) DUTIES.— The Patent Trial and Appeal Board shall—
 
 (1) on written appeal of an applicant, review
 adverse decisions of examiners upon applications for patents pursuant to
 section 134(a);
 

 
 
 (2) review appeals of reexaminations pursuant to
 section 134(b);
 

 
 
 (3) conduct derivation proceedings pursuant to
 section 135; and
 

 
 
 (4) conduct inter partes reviews and post-grant
 reviews pursuant to chapters 31 and 32.
 

 
 

 (c) 3-MEMBER PANELS.— Each appeal, derivation
 proceeding, post-grant review, and inter partes review shall be heard by at least
 three members of the Board, who shall be designated by the Director. Only the
 Patent Trial and Appeal Board may grant rehearings.
 

 (d) TREATMENT OF PRIOR APPOINTMENTS.—The Secretary of
 Commerce may, in the Secretary’s discretion, deem the appointment of an
 administrative patent judge who, before the date of the enactment of this
 subsection, held office pursuant to an appointment by the Director to take effect
 on the date on which the Director initially appointed the administrative patent
 judge. It shall be a defense to a challenge to the appointment of an
 administrative patent judge on the basis of the judge’s having been originally
 appointed by the Director that the administrative patent judge so appointed was
 acting as a de facto officer.
 

 
 

 35 U.S.C. 6 was amended in Pub. L. 112-29, sec. 7. In addition to changing
 the duties of the Board and clarifying its membership, the name of the Board was changed
 from the Board of Patent Appeals and Interferences (BPAI) to the Patent Trial and Appeal
 Board (PTAB), effective September 16, 2012. Consistent with 35 U.S.C. 6(a), examiners
 should treat any reference to the BPAI (or its predecessors, the separate Board of Appeals
 and Board of Interferences) as a reference to the PTAB. In a citation to a decision of the
 Board (e.g., in an Office action or Appeal Brief), decisions mailed prior to September 16,
 2012 should continue to be cited as decisions of the BPAI or its predecessor
 organizations.
 

 As provided by 37 CFR 41.2, “Board” means the Patent Trial
 and Appeal Board and includes: 
 

 
 (A) For a final Board action: 
 
 (1) In an appeal or contested case, a panel of the Board; 

 (2) In a proceeding under 37 CFR 41.3 , the Chief
 Administrative Patent Judge or another official acting under an express
 delegation from the Chief Administrative Patent Judge.
 

 
 

 (B) For non-final actions, a Board member or employee acting with the
 authority of the Board. 
 

 
 “Board member” means the Under Secretary of Commerce for Intellectual
 Property and Director of the U.S. Patent and Trademark Office, the Deputy Under Secretary
 of Commerce for Intellectual Property and Deputy Director of the U.S. Patent and Trademark
 Office, the Commissioner for Patents, the Commissioner for Trademarks, and the
 administrative patent judges.
 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 1201-Introduction 

 1202-Composition of Board 

 1203-Administrative Handling 

 1204-Notice of Appeal 
 1204.01-Reinstatement of Appeal 

 1204.02-Pre-Appeal Brief Review Request and Conference Pilot Program 

 1204.03-Interviews After Notice of Appeal 

 1204.04-Official Record on Appeal 

 
 

 1205-Appeal Brief 
 1205.01-Time for Filing Appeal Brief 

 1205.02-Appeal Brief Content 

 1205.03-Non-Compliant Appeal Brief and Amended Brief 

 
 

 1206-Amendments and Affidavits or Other Evidence Filed With or After Appeal 

 1207-Examiner’s Answer 
 1207.01-Appeal Conference 

 1207.02-Contents of Examiner’s Answer 

 1207.03-New Ground of Rejection in Examiner’s Answer 
 1207.03(a)-Determining Whether a Ground of Rejection is New 

 1207.03(b)-Petition to Designate a New Ground of Rejection and to Reopen Prosecution 

 1207.03(c)-Appellant's Reply to New Grounds of Rejection 

 
 

 1207.04-Reopening of Prosecution After Appeal 

 1207.05-Substitute Examiner’s Answer 

 
 

 1208-Reply Briefs and Fee for Forwarding Appeal 
 1208.01-Fee for Forwarding an Appeal to the Board 

 
 

 1209-Oral Hearing 

 1210-Actions Subsequent to Examiner’s Answer but Before Board’s Decision 

 1211-Remand by Director or Board 
 1211.01-Remand by Board for Further Consideration of Rejection 

 1211.02-Remand To Consider Amendment 

 1211.03-Remand To Consider Affidavits or Declarations 

 1211.04-Remand by Board for Further Search 

 
 

 1212-Board Requires Appellant to Address Matter 

 1213-Decision by Board 
 1213.01-[Reserved] 

 1213.02-New Grounds of Rejection by Board 

 1213.03-Publication of and Public Access to Board Decision 

 
 

 1214-Procedure Following Decision by Board 
 1214.01-Procedure Following New Ground of Rejection by Board 

 1214.02-[Reserved] 

 1214.03-Rehearing 

 1214.04-Examiner Reversed in Whole 

 1214.05-Cancellation of Claims Not Appealed 

 1214.06-Examiner Sustained in Whole or in Part; Claims Require Action 

 1214.07-Reopening of Prosecution 

 
 

 1215-Withdrawal or Dismissal of Appeal 
 1215.01-Withdrawal of Appeal 

 1215.02-Claims Standing Allowed 

 1215.03-Partial Withdrawal 

 1215.04-Dismissal of Appeal 

 
 

 1216-Judicial Review 
 1216.01-Appeals to the U.S. Court of Appeals for the Federal Circuit 

 1216.02-Civil Suits Under 35 U.S.C. 145 and 146 

 
 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:49:25