1202.05 Multiple Class Applications
If an application contains multiple classes, and the final refusal or requirement pertains to some but not all of the classes, an applicant may choose to file an appeal for the application as a whole, or it may choose to file a request to divide the application. [ Note 1.] See TBMP § 1205.02 regarding requests to divide. In the former case, the classes for which an appeal has not been taken remain part of the application. After a decision on the appeal is rendered, the classes that were not part of the appeal (and those classes for which the refusal or requirement was reversed) will be published for opposition or, in the case of an application on the Supplemental Register, will proceed to registration. If a request to divide is filed along with a notice of appeal, the appeal will be suspended until action is taken on the request to divide. Those classes for which there is no final requirement or refusal, and which have been divided out, will immediately proceed to publication or, in the case of an application on the Supplemental Register, to registration, and will not be delayed pending a decision on the appeal.
Similarly, if a final refusal or requirement pertains to some but not all of the goods or services listed in a single class, the applicant may either file an appeal for the class as a whole, or request that the goods or services for which no final refusal or requirement has been made be divided out of the application, in effect creating two applications for a single class of goods or services. If no request to divide is filed, after the appeal is decided, the application containing those goods or services for which no refusal or requirement was made (as well as the other goods or services in the class if the refusal was reversed) will be published for opposition or, in the case of an application on the Supplemental Register, will proceed to registration. If the goods or services for which no refusal or requirement was made were divided out of the parent application and into a child application, the child application will immediately proceed to publication or, in the case of an application on the Supplemental Register, to registration. See TBMP § 1205.02.
If the final refusals or requirements do not apply to all the classes in a multiple class application, an appeal fee is required only for those classes for which the appeal is taken, that is, those classes for which a final refusal or requirement is made. This is true whether or not the applicant requests that the application be divided.
If the applicant decides to file an appeal for fewer than all the classes in the application for which final refusals or requirements have issued, the applicant should indicate in the notice of appeal the classes for which the appeal is taken. See TBMP § 1202.04 regarding insufficient appeal fees for all classes in the application to which final refusals or requirements pertain.
NOTES:
1. See 37 C.F.R. § 2.87.