A pre-appeal brief request for review is a short written request, filed together with a Notice of Appeal, asking a panel of USPTO personnel to take a second look at a final rejection before you commit to a full appeal brief. The request itself costs nothing beyond the Notice of Appeal fee, the argument is capped at five pages, and the panel can withdraw the rejection, allow the application, send you forward to appeal, or dismiss the request as non-compliant.
When You Can File One
The request applies to utility, design, and plant applications that have received a final rejection. It does not apply to reexamination proceedings, and it is limited to appealable issues — the substance of the rejection, not procedural or petitionable matters.1United States Patent and Trademark Office. Manual of Patent Examining Procedure Section 1204 – Notice of Appeal
Timing is strict. You must file a Notice of Appeal under 37 CFR 41.31, and the pre-appeal request must be filed at the same time. No extensions are available to submit the request later, and once an appeal brief has been filed the window is closed.1United States Patent and Trademark Office. Manual of Patent Examining Procedure Section 1204 – Notice of Appeal
What Goes in the Request
Use USPTO Form PTO/AIA/33 as a cover sheet. It captures the application number, filing date, inventor name, art unit, and examiner. Attached to the form is a separate written argument titled “Pre-Appeal Brief Request for Review,” which cannot exceed five pages. The cover sheet does not count against that limit.2United States Patent and Trademark Office. Pre-Appeal Brief Request for Review
The five pages need to point to a clear legal or factual error. The requests that work tend to identify something specific: a misread passage in a prior art reference, an unsupported combination of references, or an incorrect claim construction. Cite the exact portions of the prosecution history that back your position so the panel can find them without searching the file. Vague disagreement with the examiner’s conclusion rarely moves the needle.
One strict rule: no new evidence and no amendments. The form itself states that no amendments are being filed with the request, and the MPEP makes clear that any after-final amendment filed on the same day, even as a separate submission, will cause the request to be dismissed as non-compliant.1United States Patent and Trademark Office. Manual of Patent Examining Procedure Section 1204 – Notice of Appeal The panel reviews only the record as it stood at the final rejection. If you want to amend, a Request for Continued Examination is the better route.
Filing and Fees
File electronically through Patent Center.3United States Patent and Trademark Office. Patent Center Upload the cover sheet and the argument as separate PDFs.
There is no separate fee for the pre-appeal request. The only required payment is the Notice of Appeal fee under 37 CFR 41.20(b)(1), which travels with the Notice of Appeal filed alongside it:4United States Patent and Trademark Office. USPTO Fee Schedule
- Large entity: $905
- Small entity: $362
- Micro entity: $181
The appeal brief itself currently carries no additional filing fee, so the pre-appeal request adds nothing to what you were already going to spend on the Notice of Appeal.4United States Patent and Trademark Office. USPTO Fee Schedule
How the Panel Reviews It
Once the request is on file, a supervisory patent examiner assembles the panel. It includes at least the examiner of record and a supervisor, and it has authority to reopen prosecution if warranted.1United States Patent and Trademark Office. Manual of Patent Examining Procedure Section 1204 – Notice of Appeal The applicant cannot attend, and no interviews are granted from the time the request is filed through issuance of the decision. The panel reads your argument alongside the rejection and the prosecution history, deliberates internally, and mails a written decision. There is no hearing and no back-and-forth.
The Four Possible Outcomes
Every decision falls into one of four categories:1United States Patent and Trademark Office. Manual of Patent Examining Procedure Section 1204 – Notice of Appeal
- Appeal proceeds. The panel finds at least one genuine issue for appeal and the rejection stands. You must file a full appeal brief to continue.
- Prosecution reopened. The panel agrees the rejection has problems and withdraws it. A new office action follows, and in some cases the decision may include a proposed claim amendment that, if accepted, could lead to allowance.
- Application allowed. The panel decides the existing claims are allowable. Prosecution stays closed and a Notice of Allowance follows.
- Request dismissed. The filing did not meet program requirements, whether by exceeding the page limit, including an amendment, or failing to identify specific errors. The appeal moves forward as if no request had been made.
Watch the Appeal Brief Deadline
If the panel keeps the rejection in place, the clock for filing an appeal brief does not reset. Under 37 CFR 41.37, the appeal brief is due within two months from the date the Notice of Appeal was filed, not from the date of the panel’s decision.5United States Patent and Trademark Office. Manual of Patent Examining Procedure 1205 – Appeal Brief Because the pre-appeal review takes time, a chunk of your two months may already be gone when the decision arrives.
Extensions are available by petition, but the extended deadline still runs from the original Notice of Appeal date. If there is any chance the panel will rule against you, start drafting the appeal brief in parallel. Missing the deadline forfeits the appeal.
What to Do If the Panel Sides With the Examiner
Filing the full appeal brief with the Patent Trial and Appeal Board is the direct path and carries no additional filing fee beyond the Notice of Appeal you already paid.
A Request for Continued Examination is the alternative. An RCE withdraws the application from appeal and reopens prosecution, which lets you amend claims, submit new arguments, or introduce new evidence — none of which the pre-appeal process allows. The cost is $1,500 for a large entity, $600 for a small entity, or $300 for a micro entity on the first request, and roughly double those amounts on a second or subsequent RCE.4United States Patent and Trademark Office. USPTO Fee Schedule
Requesting an examiner interview after an unfavorable pre-appeal decision is technically possible but uncommon. The MPEP permits one interview after final rejection up until the filing of an appeal brief, and some examiners or supervisors will have a brief conversation about narrowing the issues. Most practitioners report these post-conference interviews rarely change the outcome.
When It’s Worth Filing
The pre-appeal request works best when the examiner made an identifiable, concrete mistake: misquoted a prior art passage, combined references in a way the references don’t support, or applied the wrong legal standard. Cases that hinge on judgment calls about obviousness or claim scope are harder to win here, because the panel tends to give the examiner the benefit of the doubt on close questions.
Compared with filing an RCE, the pre-appeal request preserves your right to appeal and costs nothing extra. Compared with going straight to a full appeal brief, it is a low-effort screen that can resolve the case in weeks rather than the year or more a Board appeal typically takes. The downside is real: an unfavorable decision eats into your two-month brief deadline without giving you anything new to work with.
For applicants whose case is strong on the existing record, filing is almost always the right call. It costs nothing, takes little preparation relative to a full brief, and occasionally catches errors a supervisor would have corrected if they had looked at the file sooner.