Very dumb question - Appeal v. Petition

[fakeplastictree]

Ok, I have been searching the MPEP and cannot find the answer to this question.  What is "the line of demarcation between appealable matters for the Board of Patent Appeals and Interferences and petitionable matters for the Director of the U.S. Patent and Trademark Office?"  See MPEP 1201.

I have a sense of which matters to appeal and which to petition, but I can't put it exactly into words and I can't find it in the MPEP. 

37 CFR 1.181 simply says you can petition "any action or requirement of any examiner...which is not subject to appeal...," among other things.  Then the appeals section simply says to observe the line of demarcation. 

Does anyone know the section of the MPEP to refer to?

[JimIvey]

I'll watch for an authoritative answer as well.  But my general understanding is that appeal is for traversing legal conclusions reached by the examiner and petition is for traversing procedure followed by the examiner (or the Office).

Regards.

[Isaac]

I'll watch for an authoritative answer as well.  But my general understanding is that appeal is for traversing legal conclusions reached by the examiner and petition is for traversing procedure followed by the examiner (or the Office).

I cannot think of a better generalization.  But understand that the generalization is just a thumbrule.

A few legal conclusions are not appealable to the board.  Examiner decisions related to restriction/election are not appealable to the Board.  Also look at the distinction made in 608.04(c) regarding decisions related to new matter. 

Consider the situation where a 102(a) rejection is maintained by the examiner despite your attempts attempts to perfect foreign priority.   Should you petition to supervise the examiner or should you appeal the 102(a) rejection to the Board?  Can you do both?  What happens if you err in choosing between petition/appeal?

Rejections are generally appealable while objections are generally petitionable.  It follows from that rough rule that things governed by statute are generally appealable, but things governed only by the rules and the MPEP are generally petitionable.   Of course some statutory issues do result in objections (e.g. improper multiple dependent claims).

[ChrisWhewell]

Rejections are appealable, objections are petitionable, and sometimes rule 183 can boldly go where no rule has gone before.