The United States Patent and Trademark Office (USPTO) has launched a new pilot program to fast-track ex parte appeals to the Patent and Trial Appeal Board (PTAB). While ex parte appeals to the PTAB are normally decided in the order in which they are docketed, this new Fast-Track Appeals Pilot Program will allow appellants to have their appeals advanced out of turn. Petitions for expedited appeals accompanied by the required fee of $400 are being accepted as of July 2, 2020.
The Pilot Program is being adopted on a temporary basis for the duration of one year and, at the end of this period, will be evaluated to determine whether the program should be permanently adopted, extended or discontinued after July 2, 2021. The USPTO will consider at least the impact on the pendency of other appeals in determining whether the Pilot Program should be modified or terminated.
The Fast-Track Appeals Pilot Program is intended to complement the existing Track One prioritized examination program, which already allows applicants to receive expedited review of a patent application for an additional fee. The Track One program seeks to provide a final disposition of an application within twelve months of prioritized status being granted, and has proven popular with patent applicants. In view of the popularity of the Track One program, the USPTO decided to adopt a program to expedite appeals to the PTAB, in order to further accelerate patentability determinations on new inventions.
The USPTO expects that appeals reviewed under the Fast-Track Appeals Pilot Program will be decided within six months from the date a petition is granted. Currently, the average time to a decision on an ex parte appeal is approximately fourteen months. In announcing the new Pilot Program, USPTO Director Andrei Iancu said: “For the first time in USPTO history, applicants will be able to speed up both patent examination and ex parte appeals, thus obtaining decisions on their most important inventions in about half the time of a typical application.”
Initially, the number of expedited ex parte appeals will be limited to a maximum of 500 appeals per fiscal year during the one-year duration of the program. In addition, any oral hearings scheduled under the program will also be expedited and cannot be rescheduled.
The hope is that the use of this Fast-Track Appeals Pilot Program will help accelerate the pace at which products incorporating new inventions are introduced to the marketplace, thereby stimulating economic growth and encouraging follow-on innovations. Therefore, innovators filing patent applications that are particularly valuable and ready for commercialization will want to strongly consider utilizing both the Track One prioritized examination and the new Fast-Track Appeals Pilot Program, if needed.