What are my options to appeal a patent decision?

| Oct 23, 2020 | Intellectual Property Litigation |

While people might not really think of it until they actually have an idea they want to protect, obtaining a patent for an invention is a legal process that an aspiring inventor can win or lose.

Sometimes, an examiner with the United States Patent and Trademark Office will make a decision that leaves a New Jersey inventor out of luck despite his or her best efforts.

However, there are options available that an inventor can try in an effort to save their economic opportunity.

Appeals within the Patent and Trademark Office

The Patent and Trademark Office has its own procedures for allowing people unsatisfied with a patent examiner’s decision to seek a review.

The Patent Trial and Appeal Board reviews appeals from inventors on what is called an ex parte basis, meaning that the review does not work exactly like a trial or even a court appeal.

Instead, the Appeal Board will review the inventor’s written argument explaining why the examiner is incorrect and will also review the examiner’s response. In some cases, the Board may also speak with each side in a formal proceeding.

Judicial review is also an option

If a review before the Appeal Board does not work out the way an inventor hoped, he or she may ask for a judicial review. There are two possible options in this respect.

A person may choose to appeal to the United States Court of Appeals for the Federal Circuit. In other cases, it may be better for the person to sue to obtain his or her patent in federal district court, specifically the Court in the Eastern District of Virginia.

Which option one should exercise, assuming it is best to appeal at all, depends on individual circumstances. Moreover, for any appeal or review process, complicated rules and strict deadlines may apply.


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