What happens if the Examiner refuses to grant a patent?
It does happen that an Examiner cannot be persuaded, by written or oral arguments. Then, the only option may be an appeal. An appeal is made to a board within the Patent & Trademark Office. The appeal may be conducted entirely in writing, but an oral hearing may be requested. Although the appeal board is part of the Patent & Trademark Office, it is sufficiently separated from the Examiner that it can be expected to render a reasonably impartial decision. Recent statistics show that the appeal board reverses the Examiner’s decision in about one-third of the cases heard. If the appeal board does not reverse the Examiner’s decision, you can exercise further rights of appeal, in the courts. You may choose between two different kinds of court proceedings, one of which is a streamlined appeal to a higher court, and the other including a full trial on the issue of patentability. Naturally, the latter option is more expensive.
