As discussed in another post, a common issue in patent prosecution relates to drawing objections. Usually the issues are easily corrected. However, sometimes, the the objection is not so easily cured. Generally, one cannot appeal this issue, but rather one must petition.

However, there is a small exception to the rule that objections are not reviewable on appeal. Specifically, while ordinarily, an objection to a drawing under 37 C.F.R. § 1.83(a) is reviewable by timely petition under 37 C.F.R. § 1.113, there is an exception when the drawing issues relate to appealable issues. Specifically, MPEP 1201 explains (emphasis added, internal citations omitted):

… the line of demarcation between appealable matters for the Board and petitionable matters for the Director of the U.S. Patent and Trademark Office (Director) should be carefully observed. The Board will not ordinarily hear a question that should be decided by the Director on petition, and the Director will not ordinarily entertain a petition where the question presented is a matter appealable to the Board. Ordinarily, an objection is petitionable, and a rejection is appealable, but when the objection is "determinative of the rejection" the matter may be addressed by the Board.

An example where the applicant was successful in having the drawing issue determined by appeal is Application 15/612,484. The issue was whether the drawings showed that a certain retaining ring (element 32) was in a single plane, or not.

What some examiners do not appreciate is that the figures cannot be viewed in isolation. The test is not whether the figures, by themselves, show all claimed features. Here, the PTAB explained that if one merely viewed FIG. 2 in isolation, it was a close call whether the ring 32 was in a single plane because the ring 32 appears in perspective, has a shallow ramp angle, and it is too thin to allow shade lines further defining the shape of the ring. However, the PTAB went on (internal citations omitted):

… we must not view Figure 2 in isolation. As Appellant correctly points out, the Specification clearly and consistently teaches that retaining ring 32 is spiral and provides a biasing force. Viewing Figure 2 in light of these disclosures, a person of ordinary skill in the art would understand that the end of spiral retaining ring 32 nearest the plane of the drawing is closer than the opposite end by about the thickness of the ring. Therefore, the Examiner does not persuade us that Figure 2 fails to depict the spiral retaining ring recited in claims 1 and 7. On this basis, we reverse the objection to the drawing.

So, make sure that USPTO examiners take into account the specification as well as the figures when they make objections under 37 CFR 1.83(a).