The BPAI is comprised primarily of an Appeals Division and a Trial Division. The Appeals Division, with 69 Administrative Patent Judges, handles appeals of patent examiner rejections, with sections adjudicating different technology areas. The Trial Division, with 11 Administrative Patent Judges, handles contested cases or interference proceedings. The BPAI is headed by a Chief Administrative Patent Judge.
A patent applicant can appeal the patent examiner's decision to the BPAI. The appeal procedure is described in section 1200 of the U.S. Manual of Patent Examining Procedure (MPEP). Typically, appeals to the BPAI are conducted ex parte Decisions of the BPAI are typically rendered as a written opinion.
Decisions of the BPAI can be further appealed to the Court of Appeals for the Federal Circuit (CAFC) under 35 U.S.C. §141. Decisions of the CAFC may also be reviewed on a discretionary basis by the U.S. Supreme Court. The U.S. Supreme Court is the ultimate authority on the judicial standards for patentability.
An alternative path is a civil action against the Commissioner of Patents and Trademarks in the U.S. District Court for the District of Columbia under 35 U.S.C. §145. Any appeal arising from such a case would then be directed to the CAFC under 35 U.S.C. §1295.
- MPEP 1202, MPEP 1203.
- Board of Patent Appeals and Interferences Organization Chart
- U.S. Patent & Trademark Office, Chapter 1200 Appeal, Manual of Patent Examining Procedure.
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