On July 2, 2020, the Patent Office initiated the “Fast-Track Appeals Pilot Program,” which it designed to reduce the pendency of ex parte appeals. The program, effective for one year, is in a pilot stage to gauge the public’s interest and to assess its longer-term feasibility. The Office neither expects nor intends any delays for appeals that forego the pilot program. So, for now, participation in the program is first come, first served, limited to 500 applications, and requires submission of a short petition and payment of a modest fee. The program is likely welcome news, especially to those who have complained about the lengthy pendency often accompanying appeals.
A patent applicant dissatisfied with an examiner’s final rejection of an application claim may appeal the rejection to the Patent Trial and Appeal Board. The process begins with a notice of appeal. Jurisdiction over the application remains, however, with the examiner until briefing is complete. Within the two-month period, which is extendible by up to five months, following the notice, the applicant must file its appeal brief. The examiner then has a time-unlimited period in which to file an answer. Whenever the examiner answers, the applicant has a two-month period in which to file a reply. When the reply period expires, the appeal is docketed to the Board who then has jurisdiction over the application. The Board decides these appeals in the order in which they are docketed. In recent years, the number of appeals has fallen, from a high of more than 26,000 in 2012 to less than 9,000 in 2019.
Since 2019, the average pendency—beginning when the appeal is docketed to the Board and ending with the Board’s decision—is about fifteen months.
Under the pilot program, however, the Board “will endeavor to issue a decision on an ex parte appeal within six months from the date the appeal is entered into the program.” That’s a laudable endeavor and welcome news for those who want their appeals decided sooner rather than later. Applicants may file their petition seeking entry into the program when the appeal is docketed to the Board. According to the Patent Office, “fast-track decisions on ex parte appeals under this Pilot Program may hasten patentability determinations on new inventions and the pace at which products or services embodying these inventions are brought to the marketplace, thus spurring follow-on innovation, economic growth, and job creation.” In a year, the Patent Office will determine whether to end, modify, or make the pilot program permanent.