37 CFR 42.71: Decision on petitions or motions

Taken from the Ninth Edition of the MPEP, Revision 07.2015, Last Revised in November 2015

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42.71    Decision on petitions or motions.

  • (a) Order of consideration. The Board may take up petitions or motions for decisions in any order, may grant, deny, or dismiss any petition or motion, and may enter any appropriate order.
  • (b) Interlocutory decisions. A decision on a motion without a judgment is not final for the purposes of judicial review. If a decision is not a panel decision, the party may request that a panel rehear the decision. When rehearing a non-panel decision, a panel will review the decision for an abuse of discretion. A panel decision on an issue will govern the trial.
  • (c) Petition decisions. A decision by the Board on whether to institute a trial is final and nonappealable. A party may request rehearing on a decision by the Board on whether to institute a trial pursuant to paragraph (d) of this section. When rehearing a decision on petition, a panel will review the decision for an abuse of discretion.
  • (d) Rehearing. A party dissatisfied with a decision may file a single request for rehearing without prior authorization from the Board. The burden of showing a decision should be modified lies with the party challenging the decision. The request must specifically identify all matters the party believes the Board misapprehended or overlooked, and the place where each matter was previously addressed in a motion, an opposition, or a reply. A request for rehearing does not toll times for taking action. Any request must be filed:
    • (1) Within 14 days of the entry of a non-final decision or a decision to institute a trial as to at least one ground of unpatentability asserted in the petition; or
    • (2) Within 30 days of the entry of a final decision or a decision not to institute a trial.
[Added, 77 FR 48612, Aug. 14, 2012, effective Sept. 16, 2012; para. (d) first sentence revised, 80 FR 28561, May 19, 2015, effective May 19, 2015]