TMEP 1501.02(a): Applicant’s Appeal Brief

October 2017 Edition of the TMEP

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1501.02(a)    Applicant’s Appeal Brief

The applicant must file an appeal brief within 60 days of the date of the appeal, or the Board may dismiss the appeal. 37 C.F.R. §2.142(b)(1);  see In re Live Earth Prods. Inc., 49 USPQ2d 1063 (TTAB 1998).  If the appeal is dismissed, the applicant may file a motion with the Board to set aside the dismissal and accept a late-filed brief.  Applicant may also file a motion to accept a late-filed brief when the time for filing the brief has expired but the Board has not yet issued an order dismissing the appeal.  If the Board denies the motion, the applicant may file a petition to the Director under 37 C.F.R. §2.146, asking the Director to review the Board’s action.  The Director will reverse the Board’s action only if the Board clearly erred or abused its discretion.  An applicant should not file a petition to the Director until it has firstfiled a request/motion to accept the late-filed brief with the Board, and the Board has denied the request/motion. TBMP §1203.02(a).  The applicant may not file a petition to revive under 37 C.F.R. §2.66 when an appeal is dismissed for failure to file a brief. TMEP §1714.01(f)(ii)(E).

The date of appeal for purposes of calculating the due date of the appeal brief is the date on which the notice of appeal and filing fee is received by the USPTO.  If the applicant has also filed a request for reconsideration under 37 C.F.R. §2.63(b)(3), the Board will acknowledge receipt of the appeal and request, suspend further proceedings (including applicant’s time for filing its appeal brief), and remand the application to the examining attorney.  See TBMP §§1203.02(a) and 1204 for further information.  The filing of a request for reconsideration within six months of a final Office action will automatically result in a suspension of the appeal, and an applicant need not file either its appeal brief or a request for an extension of time to file the brief. See TBMP §1204.   

The applicant’s brief may not exceed twenty-five double-spaced pages in length, and should meet the requirements of 37 C.F.R. §2.126. 37 C.F.R. §2.142(b)(2); TBMP §1203.01;  see In re Thomas, 79 USPQ2d 1021 (TTAB 2006) (Board refused to consider applicant’s 29-page brief).