Source: USPTO

APPEALS vs RCE – Options after final rejection

  • Comparing RCEs with PTAB appeals:
  • (a) Decision makers;
  • (b) Scope of evidence and arguments;
  • (c) Timing; and
  • (d) Costs.


  • RCEs:
  • Examiner responds to RCE in about 2.5 months.
  • Appeals to PTAB:
  • PTAB issues a decision on appeal about 12-13 months after the appeal forwarding fee is paid.


  • RCEs:
  • 1strequest: $1,360/$680/$340;
  • 2ndand subsequent requests: $2,000/$1,000/$500;
  • Costs to prepare response to final rejection.
  • Appeals:
  • Notice of appeal fee: $840/$420/$210;
  • Appeal forwarding fee: $2,360/$1,180/$590;
  • Fast-Track Appeals petition fee: $420 ($0 if COVID-19 Related);
  • Costs to prepare appeal brief and reply brief;
  • Request for oral hearing fee: $1,360/$680/$340.

*shown as undiscounted/small entity/micro entity, as applicable.


  • The facts of the case are the best guide to selecting how to proceed after final rejection.
  • There are faster options for appeals.
  • Typically ~12 months after forwarding fee paid.
  • Can be 2 months or less with Fast-Track.
  • Appeals have multiple “off-ramps.”
  • After each of the Pre-Appeal Brief Conference and Appeal Conference, many applications allowed or reopened.