Rejected Patent Applications

If a patent application is rejected by an examiner at the US Patent and Trademark Office (PTO), an applicant may appeal that decision to the full Board of Patent Appeals and Interferences (BPAI), a branch of the United States Patent and Trademark Office (PTO).

If the Board of Patent Appeals and Interferences (BPAI) agrees with the examiner and decides not to grant the patent, the inventor has the right to:

• Appeal directly to the Court of Appeals for the Federal Circuit (CAFC) which has primary jurisdiction over all issues related to patent law.
• File a suit to obtain a patent in the District Court for the District of Columbia de novo (based on some mistake made by the US Patent and Trademark Office (PTO) in the course of its determination).
• Appeal to the Commissioner under the premise that the US Patent and Trademark Office (PTO) failed to follow the guidelines of the Administrative Procedures Act.

It should be noted that anyone who appeals to the Commissioner seeking patent review under the Administrative Procedures Act must overcome the “presumption of administrative correctness,” which attaches to decisions of the U.S. Patent and Trademark Office (PTO). The Federal Circuit has said that it will reverse a decision of the U.S. Patent and Trademark Office (PTO) and its Commissioner only if an “abuse of discretion” has been proven.

Decisions from both the District Court for the District of Columbia and the Commissioner can be appealed to the U.S. Court of Appeals for the Federal Circuit.