PTAB ex parte appeals

Steps, deadlines and fees

The rules are in 37 CFR part 41, subpart B. Fees are from the USPTO fee schedule effective January 19, 2025 (last revised August 14, 2026) and 37 CFR 41.20. Third-party filers cannot use the micro entity rate.

1. The notice of appeal

35 U.S.C. 134(a) lets an applicant "any of whose claims has been twice rejected" appeal to the Board. The second rejection need not be final. Under 37 CFR 41.31, you file the notice and fee within the period for reply, and the appeal is presumed to cover every rejected claim not cancelled. The usual signature requirements of 37 CFR 1.33 do not apply to the notice (41.31(b)).

You can file a pre-appeal brief request with the notice, at no extra fee, asking a panel to look for clear errors before you write the brief (MPEP 1204.02). The arguments are limited to 5 pages and no amendment may be filed with it. Its outcomes and the September 2026 change that lets an administrative patent judge sit on the panel are covered in options after a final rejection.

2. The appeal brief

The brief is due 2 months after the notice of appeal and can be extended under 37 CFR 1.136(a). Its fee is $0. If you miss it, the appeal stands dismissed (41.37(b)). Extensions have a hidden cost: a brief filed more than 3 months after the notice reduces patent term adjustment by every day beyond that (37 CFR 1.704(c)(11)).

Under 41.37(c)(1), the brief has five parts, in this order:

1. Real party in interest, unless it is the named inventors.
2. Related appeals, interferences and trials, if any.
3. Summary of claimed subject matter for each rejected independent claim, mapped to the specification by page and line or paragraph number and to the drawings by reference numeral. Means-plus-function elements must identify the corresponding structure. Citing the published application is not enough.
4. Argument, with each ground of rejection under its own heading and any separately argued claim under its own subheading.
5. Claims appendix with the claims on appeal.

Two drafting rules decide many appeals. First, arguments not in the brief "will be refused consideration," subject to narrow exceptions for the reply brief and hearing. Second, claims argued as a group stand or fall together; the Board may pick one claim and decide the group on it. A statement that merely points out what a dependent claim recites is not a separate argument. If a dependent claim has a real point of distinction, argue it under its own subheading. A brief from an appellant without a registered practitioner need only substantially comply with parts 1, 2, 4 and 5. The brief may not include any new or non-admitted amendment or evidence (41.37(c)(2)).

3. Appeal conference and examiner's answer

After an acceptable brief, an appeal conference is mandatory unless the examiner, with supervisory approval, decides the appeal should not go forward (MPEP 1207.01). The participants are the examiner, a supervisory patent examiner and a conferee. Since a September 2026 USPTO notice, an administrative patent judge may serve as that conferee in an advisory role, and will not sit on the panel that later decides the appeal. The conference can end with prosecution reopened or the application allowed, so some appeals end before reaching the Board.

If the rejection stands, the examiner writes an answer (41.39). It may include a new ground of rejection only with the Director's approval, and any reliance on evidence not used in the rejection appealed from must be designated as a new ground. Facing a new ground, you have 2 months to either reopen prosecution with a reply under 1.111, which withdraws the appeal, or maintain the appeal with a reply brief addressing it. If you think the answer contains an undesignated new ground, the remedy is a petition under 37 CFR 1.181.

4. Forwarding fee, reply brief and oral hearing

Three deadlines run from the examiner's answer, and none can be extended under 1.136(a):

• Forwarding fee ($2,535 standard) within 2 months, or the appeal stands dismissed (41.45). This is the fee that actually sends the case to the Board, and it is only due if the examiner answers.
• Reply brief, optional, within 2 months (41.41). Only one is allowed. New arguments are ignored unless they respond to the answer or a new ground, or good cause is shown.
• Oral hearing, optional, requested in a separate paper with the $1,460 fee within 2 months of the answer or with the reply brief, whichever is earlier (41.47). The appellant usually gets 20 minutes and the examiner 15. The rule says appeals decided on the briefs "receive the same consideration," so request a hearing when the technology is hard to follow on paper, not by default.

Jurisdiction passes to the Board when the reply brief is filed or the time for it expires (41.35(a)). An IDS or petition filed while the Board has the case is held in abeyance. An RCE filed before the decision withdraws the appeal and sends the case back to the examiner.

5. The decision and what comes after

The Board may affirm or reverse each rejection, in whole or in part, or remand (41.50). Affirming a claim on any one ground affirms the rejection of that claim. The Board can also enter its own new ground of rejection under 41.50(b); you then have 2 months to reopen prosecution with an amendment or evidence, or request rehearing on the same record.

After an adverse decision you can request rehearing once within 2 months, pointing to what the Board misapprehended or overlooked (41.52), or seek review in the Federal Circuit or by civil action within 63 days of the decision (37 CFR 90.3). Within those 63 days you can also file an RCE to pursue amended claims, or a continuation. A reversal also earns patent term: the time the Board had the case is added back as adjustment (37 CFR 1.702(e), 1.703(e)).

Pendency: what the PTAB data shows

The Board publishes monthly appeal statistics. In fiscal year 2026 it received 3,684 appeals and decided 4,829, cutting its inventory from 3,125 to 1,977. Pendency is measured from the Board's receipt of the appeal to the final decision, so it starts after briefing and the forwarding fee.

Source: PTAB Appeal Statistics, September 30, 2026. Design (TC 2900) and reexamination (TC 3900) appeals are omitted.

For a case that needs a faster answer, the PTAB's Fast-Track Appeals Pilot Program runs until May 6, 2028. After the appeal is docketed at the Board, you petition under 37 CFR 41.3 with a $452 fee (no entity discount, not refunded if denied). The Board targets a decision within 4 months of granting the petition and grants up to 125 petitions a quarter. The PTAB reported 596 fast-track appeals decided through April 30, 2026, averaging about 3 months from grant to decision. With regular pendency now near 6 months, the petition buys less than it did, but it can still matter for a licensing deadline.

Outcomes: affirmance rates from official data

Of the 4,829 appeals decided in FY 2026, the Board affirmed 59.8%, affirmed in part 8.0% and reversed 31.5%; remands and dismissals made up the rest. "Affirmed in part" means at least one rejection or claim was reversed, which can be enough for allowable claims. The rates vary by technology center:

Calculated from the receipts and dispositions table, fiscal year to date October 2025 to September 2026, in the PTAB Appeal Statistics of September 30, 2026. Remands and dismissals are not shown, so rows do not sum to 100%.

Read these numbers with care. They count only appeals that reached a decision. Cases the examiner allowed or reopened after a pre-appeal request or appeal conference never appear, and those are often the weakest rejections. The rates also say nothing about your case: a rejection that misreads a reference is a better bet than a close obviousness call, whatever the art unit's average.

Worked example: cost and timeline

A small entity in TC 2100 gets a final rejection on January 12, 2026 and files a notice of appeal on April 10 ($362), within the 3-month period. The brief goes in on June 8, inside 2 months, so no extension fee and no patent term reduction. The examiner's answer issues on September 15. The applicant pays the forwarding fee ($1,014) and files a reply brief on November 10, with no hearing. Official fees: $1,376. If the Board's TC 2100 pendency holds near 6 months from receipt, a decision would come around mid-2027. Had the applicant instead filed a third RCE, the fee alone would have been $1,144 for another round with the same examiner; see RCE vs appeal.

The Board reviews rejections, not procedural requirements. A restriction requirement is reviewed by petition, not appeal (see restriction requirements), and so is a premature final rejection. Objections to form go to petition as well.

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