35 U.S.C. · Part II · Chapter 12, Examination of application
35 U.S.C. 134: Appeal to the Patent Trial and Appeal Board
In plain English
An applicant whose claims have been twice rejected may appeal the examiner's decision to the Patent Trial and Appeal Board (PTAB), on payment of the appeal fee (section 134(a)). The rejection does not have to be final: two rejections are enough. A patent owner in a reexamination can appeal the final rejection of any claim (section 134(b)).
Ex parte appeals follow 37 CFR part 41. The applicant files a notice of appeal, then an appeal brief within 2 months of the notice, which sets out the arguments claim by claim. The examiner answers, the applicant may file a reply brief within 2 months of the answer, and the appeal forwarding fee must be paid within the same window to keep the appeal alive. An oral hearing is optional and must be requested separately.
The Board reviews the rejections on the record. It can affirm, reverse, or affirm with a new ground of rejection. If the applicant is still dissatisfied, section 141 allows an appeal to the Court of Appeals for the Federal Circuit, and section 145 allows a civil action against the Director in the Eastern District of Virginia instead.
Annotation by Raj Sutariya, Co-founder, PatentAssist.ai. General information, not legal advice; the statute below governs.
Text of 35 U.S.C. 134
Current text, quoted from the official United States Code.
(a) Patent Applicant.— An applicant for a patent, any of whose claims has been twice rejected, may appeal from the decision of the primary examiner to the Patent Trial and Appeal Board, having once paid the fee for such appeal.
(b) Patent Owner.— A patent owner in a reexamination may appeal from the final rejection of any claim by the primary examiner to the Patent Trial and Appeal Board, having once paid the fee for such appeal.
Practical notes
At the time of writing, the standard fees are $905 for the notice of appeal, nothing for the brief and $2,535 to forward the appeal to the Board after the examiner's answer (37 CFR 41.20(b)). Small and micro entities pay 40 and 20 percent of those amounts.
Appeal when the disagreement is about law or the reading of a reference, not when a small amendment would get the claims allowed. Once the brief is filed, amendments and new evidence are limited (37 CFR 41.33), so put declarations into the record before you appeal.
Many appeals end before the Board decides them: the examiner may reopen prosecution or allow the claims after reading the brief. Arguing each claim group separately in the brief preserves fallback positions that are lost if all claims stand or fall together.
Related rules and guidance
- 37 CFR
- § 41.31, § 41.33, § 41.37, § 41.39, § 41.41, § 41.45, § 41.47
- MPEP
- 1201, 1204, 1205, 1206, 1207, 1215
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All annotated sections of 35 U.S.C.
Statute text from the United States Code published by the Office of the Law Revision Counsel of the U.S. House of Representatives (uscode.house.gov). Text contains those laws in effect through Public Law 119-124 (October 15, 2026). Editorial notes and footnotes are omitted. The annotations are general information, not legal advice; check the official text and a registered patent practitioner before relying on them.