An ex parte appeal is an alternative to continuing prosecution before the Examiner. It is the consideration of the application “as is” and does not permit the Applicant to make substantive amendments. Since the PTAB does not issue a patent, an ex parte appeal simply reviews an Examiners decisions in a pending patent application.
During initial prosecution of a patent application, the Applicant can file an ex parte appeal after either 1) a twice rejected patent application, or 2) the issuance of a final Office Action
By filing an appeal with the PTAB, the Examiner’s rejection is reviewed by a panel of at least three administrative patent judges. It is a more formal legal environment and requires the parties to submit legal briefs and conduct optional oral arguments.
Once the arguments have been heard, the PTAB can issue an affirmance, an affirmance-in-part, a reversal, or a new ground(s) of rejection. Depending on the particular outcome, the outcome itself dictates whether the Applicant or the Examiner is the party responsible for taking the next step.