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New Fast Track for Patent Appeals

Posted in IP, Patent Law

A new temporary pilot program in the US PTO will speed up appeals in patent applications before the Patent Trial and Appeal Board (PTAB). The program, which went into effect on July 2, 2020, is called the “Fast Track Appeals Pilot Program.” The program is limited to 125 appeals per quarter.

The PTO instituted the pilot program because of the popularity of its Track I Prioritized Examination Program for patent applications. Under that program, an applicant can petition the PTO for expedited prosecution when filing a new application by paying an extra fee and limiting the number of claims. The Track I program is limited to 12,000 applications per year, and has been very successful. In 2019, 2.7% of the applications filed were under the Track I program.

However, because the Track I program does not apply to appeals, the PTO set up the Fast Track Appeals program as an analogous process that would give patent applications on appeal a similar expedited time frame.

To participate in the program, a patent applicant with an application on appeal to the PTAB must file a petition and pay a $400 fee.  The petition can be filed any time after the notice of appeal has been filed and the PTAB has docketed the appeal.  An application is not eligible if it has already been granted any other type of expedited status (such as due to the applicant’s health or age).

Once the petition is granted, the PTAB’s goal is to decide the appeal within 6 months from the date the petition was granted. This is significantly faster than the typical time an appeal is pending which is at least 15 months or more.

The pilot program will be in effect for one year, until July 2, 2021, or until 500 appeals have been accepted, whichever is earlier. The 500 number is about 8% of the average number of appeals filed in a year. The PTO has stated it may continue the program past that limit, or may change the program, depending on how well-utilized it is.

As of August 28, two months into the program, 45 petitions had been granted. Given that the PTAB will grant up 125 appeals per quarter, there is plenty of room for more!