Does Your Patent Application Qualify for the PTAB’s Fast-Track Appeal Pilot Program?

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The USPTO recently launched the Fast-Track Appeal Pilot Program on July 2, 2020. The Pilot Program is slated to last one year, with a cap of 125 granted petitions per quarter – 500 total for the year. According to a Patent Trial and Appeal Board (PTAB) webinar hosted on Feb. 18, 2021, the PTAB may use discretion to grant additional petitions per quarter. The Pilot Program allows appellants, i.e., applicant of the patent application, to file a petition to request fast-track review of ex parte appeals.

To qualify, the patent application must be an original utility, design, or plant non-provisional application. In addition, (i) a notice of appeal must have been filed in the application, and (ii) a PTAB docketing notice was issued. In other words, a deficiency of either (i) or (ii) would result in the petition being denied. Further, the appellant must file a petition under 37 CFR 41.3 seeking fast-track review accompanied by a $420 non-refundable fee (37 CFR 41.20(a)). Importantly, the Pilot Program is not available for applications treated as special under MPEP §708.01, i.e., because of age or health of the inventor.

The PTAB has set a goal to render a decision within six months from the grant of the fast-track review petition. This translates into slightly better than a 50% reduction in pendency over the average appeal time for cases not under fast-track review. Notably, the PTAB has exceed this goal and rendered decisions within about two months from the petition being granted over the first six months of the Pilot Program.

An important caveat of the Pilot Program is that an appellant’s request for oral argument could result in the hearing being scheduled in any available hearing room in any of the USPTO’s locations or by telephone. Appellants cannot reschedule hearings and still remain in the Pilot Program. Appellants may however request the hearing by video/telephone if the assigned location is inconvenient. But in light of COVID-19, all hearings for ex parte appeals are being conducted telephonically until further notice. Alternatively, appellants may waive the hearing.

Real-time data on the number of petitions received, available spots remaining, average time to decide a  petition and average time to a decision on appeal can be found here. As of the date of this post, the average time to decide a petition was 1.5 days.

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