A pre-appeal request can be made in an application that has claims that have been rejected twice. This stems from the requirement that a notice of appeal must be filed along with the pre-appeal request and pre-appeal brief. If the claims have not been rejected twice, a notice of appeal is not proper and the pre-appeal request should be denied. Additionally, the pre-appeal request can only be filed in applications where there are either:

1. Clear errors in the examiner’s rejections or
2. The examiner’s omissions of one or more essential claim elements that are needed to establish a prima facie rejection of the claims.

Thus, it is important to understand and appreciate the rejection of the examiner to determine whether at least one of the criteria has been satisfied. A Request for Pre-Appeal Brief Review must be filed with the Notice of Appeal, and can include up to five pages of arguments against the rejections.