PART
13 PETITIONS
AND
APPEAL
Rule 1300.
Nature of the function of Examiners. The function of
determining
whether or not an application for grant of patent should be allowed or
denied under the facts disclosed in the application and in the
references
consulted by the Examiner and under the applicable law (statutory and
decisional),
is a quasi-judicial function and involves the exercise of judicial
discretion.
Thus, with respect
to such function, the Director cannot lawfully exercise direct control,
direction and supervision over the Examiners but only general
supervision,
exercised through a review of the recommendation they may make for the
grant of patent and of other actions, and through a review of their
adverse
decisions by petition or appeal.
Rule
1301.
Petition to the Director to question the correctness of the
action of
an Examiner on a matter not subject to appeal. Petition
may be filed with the Director from any repeated action or requirement
of the Examiner which is not subject to appeal and in other appropriate
circumstances. Such petition, and any other petition which may be
filed, must contain a statement of the facts involved and the point or
points to be reviewed. Briefs or memoranda, if any, in support
thereof
should accompany or be embodied in the petition. The Examiner, as
the case may be, may be directed by the Director to furnish a written
statement
setting forth the reasons for his decision upon the matter averred in
the
petition, supplying a copy thereof to the petitioner. The mere
filing
of a petition will not stay the maximum period of six (6) months
counted
from the mailing date of the Examiner’s action subject of the appeal
for
replying to an Examiner’s action nor act as a stay of other
proceedings.
Rule
1302.
Appeals to the Director. Every applicant for the
grant of
a patent may, upon the final refusal of the Examiner to grant the
patent,
appeal the matter to the Director. Appeal may also be taken to
the
Director from any adverse action of the Examiner in any matter over
which
these Regulations give original jurisdiction to the Examiner. A
second
adverse decision by the Examiner on the same grounds may be considered
as final by the applicant, petitioner, or patentee for purposes of
appeal.
Rule
1303.
Effect of a final decision of an Examiner which is not
appealed.
A final decision of an Examiner which is not appealed to the Director
within
the time permitted, or, if appealed, the appeal is not prosecuted,
shall
be considered as final to all intents and purposes, and shall have the
effect of res judicata in respect of any subsequent action on the same
subject matter.
If an application
is considered abandoned for failure of the applicant to respond to an
action
of the Examiner on the merits, the order declaring the application as
withdrawn
which has become final shall likewise have the effect of res
judicata.
Rule
1304.
Time and manner of appeal. Any petition or appeal must be
taken
by filing the petition in duplicate or a notice of appeal, as the case
may be, and payment of the required fee within two (2) months from the
mailing date of the action subject of the petition or appeal, must
specify
the various grounds upon which the petition or appeal is taken,
and
must be signed by the petitioner or appellant or by his attorney of
record.
The period herein provided shall, in no case, exceed the maximum period
of six (6) months from the mailing date of the action subject of the
petition
or appeal.
Rule
1305.
Appellant’s brief required. In case of an appeal,
the appellant
shall, within two (2) months, without extension, from the date of
filing
of the notice of appeal, file a brief of the authorities and arguments
on which he relies to maintain his appeal. On failure to file the
brief within the time allowed, the appeal shall stand dismissed.
Rule
1306.
The Examiner’s answer. The Examiner shall furnish a written
statement
in answer to the petition or appellant’s brief, as the case may be,
within
two (2) months from the order of the Director directing him to submit
such
statement. Copy of such statement shall be served on the
petitioner
or appellant by the Examiner.
Rule
1307.
Appellant’s reply. In case of an appeal, the
appellant may
file a reply brief directed only to such new points as may be raised in
the Examiner’s answer, within one (1) month from the date copy of such
answer is received by him.
Rule
1308.
Appeal to the Director General. The decision or
order of the
Director shall become final and executory fifteen (15) days after
receipt
of a copy thereof by the appellant unless within the said period, a
motion
for reconsideration is filed with the Director or an appeal to the
Director
General has been perfected by filing a notice of appeal and payment of
the required fee.
Only one motion for
reconsideration of the decision or order of the Director shall be
allowed.
Rule 1309. Appellant’s
brief required. The appellant shall, within one (1) month
from
the date of filing of the notice of appeal, file a brief of the
authorities
and arguments on which he relies to maintain his appeal. On
failure
to file the brief within the time allowed, the appeal shall stand
dismissed.
Rule
1310.
Director’s comment. The Director shall submit within
one (1)
month his comments on the appellant’s brief if so required by the
Director
General.
Rule
1311.
Appeal to the Court of Appeals. The decision of the
Director
General shall be final and executory unless an appeal to the Court of
Appeals
is perfected in accordance with the Rules of Court applicable to
appeals
from decisions of Regional Trial Courts. No motion for
reconsideration
of the decision or order of the Director General shall be allowed.
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