The Federal Circuit held that a notice of appeal taken to the United States Court of Appeals is filed “timely” when filed within 60 days of the mailing date of the decision from which the appeal is taken. According to the court, a Board opinion is only truly decided when it is released to the public or (at least the parties) because, until then, it is possible for the Board to decide to revise it, and thus, the critical date must be the mailing date. McNeil owns U.S. Patent No. 6,310,269 which McNeil requested the PTO re-examine based on an unexamined Japanese Patent Application (“Sasaki”). During the re examination, the Examiner finally rejected the claims in light of Sasaki.

McNeil appealed the final rejection to the Board of Patent Appeals and Interferences (“Board”). The Board affirmed the Examiner's rejection.

McNeil filed a request for rehearing objecting to the Board making findings of fact in the first instance and arguing against the rejections on the merits. The Board denied the request.

On the face of the Board's order denying McNeil’s request for rehearing was typed “Decided May 30, 2008”.

However, the mailing sheet for the order was dated “June 2, 2008”.

Further, the online “transaction history” had two entries for the denial of the request for reconsideration for May 30, 2008 but the online image file wrapper listed June 2, 2008 in the Mailroom Date. McNeil filed a notice of appeal with the USPTO on August 1, 2008.

The Director of the PTO took the position that the appeal was untimely because it was filed more than 60 days after the Board made its final decision based on the decision date of May 30, 2008.

Congress gave the Director some authority in setting the time for filing an appeal in 35 U.S.C. § 142, which states that the Director may prescribe a date for filing a notice of appeal after the date of a decision that is no less than 60 dates. The regulation promulgated under this statute is 37 C.F.R. § 1.304(a)(1) which states that “the time for filing the 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 of Patent Appeals and Interfaces.” The regulation further makes clear that two months is two months from the decision date with exceptions for short months, such as February, and extending deadlines that fall on weekends or holidays.

Thus, the issue before the Court was whether the Board decided McNeil's motion for reconsideration on May 30 or June 2. Specifically, the “crux of the matter [was] what the phrase ‘the date of the decision’ means”.

The Court began its analysis with a review of the pertinent statutes and the legislative history thereof. However, the Court found little assistance as to whether the typed “May 30, 2008” date on the first page of the Board’s decision should be given any meaning. Further, the USPTO gave no explanation of the Board’s internal procedure for issuing decisions nor whether the June 2, 2008 mailing date reflects the first time the decision was released to the public.

The PTO argued that the statute and regulation in question state that the time to appeal runs from “the date of the decision.” Further, the opinion said “Decided: May 30, 2008.” As such, it would be contrary to the language of the statute and regulation for the court to deem the date of the decision to be the date the order was mailed.

However, the Court found that, while the PTO's argument had some superficial appeal, the inner workings of the agency were more important than the PTO admitted. Based on the evidence before the Court, the Court held that an opinion is only truly decided when it is released to the public or (at least the parties) because, until then, it is possible for the Board to decide to revise it. In view of In Re McNeil, for the purpose of determining the timeliness of the filing of a notice of appeal from a Board of Patent Appeals and Interferences decision, it is the mail room date that marks the beginning of the statutory time limit. Therefore, the Federal Circuit held that the date of decision in the current case is June 2, 2008.