11.55 Appeal to the USPTO Director.
- (a) Within thirty days after the date of the initial decision of the hearing officer under §§ 11.25 or 11.54, either party may appeal to the USPTO Director. The appeal shall include the appellant’s brief. If more than one appeal is filed, the party who files the appeal first is the appellant for purpose of this rule. If appeals are filed on the same day, the respondent is the appellant. If an appeal is filed, then the OED Director shall transmit the entire record to the USPTO Director. Any cross-appeal shall be filed within fourteen days after the date of service of the appeal pursuant to § 11.42, or thirty days after the date of the initial decision of the hearing officer, whichever is later. The cross-appeal shall include the cross-appellant’s brief. Any appellee or cross-appellee brief must be filed within thirty days after the date of service pursuant to § 11.42 of an appeal or cross-appeal. Any reply brief must be filed within fourteen days after the date of service of any appellee or cross-appellee brief.
- (b) An appeal or cross-appeal must include exceptions to the decisions of the hearing officer and supporting reasons for those exceptions. Any exception not raised will be deemed to have been waived and will be disregarded by the USPTO Director in reviewing the initial decision.
All briefs shall:
- (1) Be filed with the USPTO Director at the address set forth in § 1.1(a)(3)(ii) of this subchapter and served on the opposing party;
- (2) Include separate sections containing a concise statement of the disputed facts and disputed points of law; and
- (3) Be typed on 8 1/2 by 11-inch paper, and comply with Rule 32(a)(4)-(6) of the Federal Rules of Appellate Procedure.
- (d) An appellant’s, cross-appellant’s, appellee’s, and cross-appellee’s brief shall be no more than thirty pages in length, and comply with Rule 28(a)(2), (3), and (5) through (10) of the Federal Rules of Appellate Procedure. Any reply brief shall be no more than fifteen pages in length, and shall comply with Rule 28 (a)(2), (3), (8), and (9) of the Federal Rules of Appellate Procedure.
- (e) The USPTO Director may refuse entry of a nonconforming brief.
- (f) The USPTO Director will decide the appeal on the record made before the hearing officer.
- (g) Unless the USPTO Director permits, no further briefs or motions shall be filed.
- (h) The USPTO Director may order reopening of a disciplinary proceeding in accordance with the principles that govern the granting of new trials. Any request to reopen a disciplinary proceeding on the basis of newly discovered evidence must demonstrate that the newly discovered evidence could not have been discovered by due diligence.
- (i) In the absence of an appeal by the OED Director, failure by the respondent to appeal under the provisions of this section shall result in the initial decision being final and effective thirty days from the date of the initial decision of the hearing officer.
[Added, 73 FR 47650, Aug. 14, 2008, effective Sept. 15, 2008]