Applicants Should Consider the USPTO's Fast-Track Appeals Pilot Program
The USPTO’s Fast-Track Appeals Pilot Program can reduce the time of an appeal from a final rejection by as much as 50-75% or more. Despite its modest fee, very few applicants have taken advantage of the program. Applicants should consider this procedural option, particularly when minimizing the USPTO prosecution time is important.
In our recent Monthly Insights article, we explained the basic procedures, advantages, and costs associated with the USPTO’s Fast-Track Appeals Pilot Program.[1] This Pilot Program was designed to decrease the average time of the appeal process for an application that has received a final rejection. In a regular or traditional appeal, the applicant can expect to wait one to two years before receiving a decision on the appeal to the Patent Trial and Appeals Board (PTAB). When the Pilot Program was first announced, the USPTO had a stated goal of reducing that appeal pendency time to less than six months for those cases accepted into the program.
In order to obtain entry into the Pilot Program, the applicant proceeds by filing an ex parte appeal in the usual way. This includes filing a notice of appeal, an appeal brief, and an appeal forwarding fee, as well as any necessary extensions of time. Once jurisdiction over the application passes to the PTAB and the PTAB mails an appeal docketing notice, the applicant then files a petition to enter the Fast-Track Appeals Pilot Program along with payment of a $420 petition fee. The petition is reviewed and a decision whether to “fast-track” the appeal has made within about two to three days, based on data to date). If the petition is granted, the PTAB effectively advances the appeal out of turn on its docket and proceeds to issue a rather quick decision on appeal.
Significantly, the USPTO is keeping performance data on the Pilot Program (available at: https://www.uspto.gov/patents/ptab/fast-track-appeals-pilot-program). Since the start of the program in July 2020, the average time to decision on appeal has been a remarkably short 2.9 months. Notwithstanding this astonishingly low time from appeal to PTAB decision, the Pilot Program is still being used surprisingly infrequently. Of the 125 petition spots available this calendar quarter (1 January - 31 March) there have only been twelve successful petitions filed to enter the Pilot Program; only one petition has been denied. The reasons why applicants are not making more use of the program is not clear. Applicants should definitely consider this relatively low-cost option to greatly accelerate the appeal process.
Read more about the Fast-Track Appeals Pilot Program here: https://www.uspto.gov/patents/ptab/fast-track-appeals-pilot-program
