Trigger Date for Filing Notice of Appeal: In re McNeil-PPC, Inc.

In In re McNeil-PPC, Inc. (Fed. Cir., No. 2008-1546, decided July 31, 2009), the Federal Circuit determined the trigger date for filing a notice of appeal when the date of decision from which appeal is taken differs from the Patent and Trademark Office (PTO) mailing date of the decision.

In a reexamination proceeding, McNeil-PPC, Inc. (McNeil) appealed an examiner's rejection of claims as being obvious to the Board of Patent Appeals and Interferences (Board). The Board reviewed the appeal and affirmed the rejection of the claims. McNeil then filed a request for rehearing, which was denied by the Board. The order denying the request had a date of decision of May 30, 2008, but the mailing sheet for the order had a date of June 2, 2008. McNeil filed a notice of appeal on August 1, 2008. The (PTO) Director responded that the notice of appeal was not timely filed because it was more than 60 days from the date of decision from which the appeal is taken. At issue is the date that should serve as the trigger for determining the time limit for filing the notice of appeal, i.e., should it be the date of decision indicated on the order or should it be the mailing date of the order?

The Federal Circuit noted that the Congress gave the Director some authority to set the timing of filing of an appeal, but that in no case should the time set by the Director be less than 60 days after the date of the decision from which the appeal is taken (35 USC 142). The Federal Circuit also noted that the time for filing a notice of appeal to the U.S. Court of Appeals for the Federal Circuit or for commencing a civil action is two months from the date of the decision of the Board (37 CFR 1.304) or two months after action on a request for rehearing or reconsideration by the Board, if such a request was filed.

In this case, it was necessary to resolve the phrase "date of the decision." The language of "date of the decision" is plain enough, according to the dissenting opinion in this case. However, the majority of opinion in this case indicated that PTO inner workings affected the meaning of the "date of the decision." The Federal Circuit noted that there is little on the records to indicate that any significance ought to be attributed to the date of decision of May 30, 2008, noted on the denying order. The Federal Circuit further noted that McNeil presented a declaration from a retired PTO employee that indicated that the PTO mail room date is the trigger date for any response period. The PTO did not dispute the declaration of the retired PTO employee, but instead argued that the date of decision, as noted in 35 USC 142 and 37 CFR 1.304(a)(1), should be the trigger date for the response period.