New USPTO Pilot Program to Expedite Appeals

Do you need an expedited decision on an appeal of an examiner decision? Appeals to the Patent Trial and Appeal Board (PTAB) are usually taken up for decision in the order in which they are docketed, with an average appeal time taking about fifteen (15) months. However, appeals may now be fast-tracked thanks to the new Fast-Track Appeals Pilot Program (F-TAPP) that went into effect today, July 2, 2020. Under the F-TAPP, an appellant may have any appeal to the PTAB advanced out of turn by simply filing a petition accompanied by a $400 fee. A decision on an appeal is rendered within six (6) months from the date of the appeal is entered into the program.

Please find below questions and answers regarding the F-TAPP. If you have additional questions or require assistance with your intellectual property matters, please do not hesitate to contact our office.

Q: Can any pending ex parte appeal be accorded fast-track status under the F-TAPP?
A: The PTAB will accord fast-track status to a pending ex parte appeal for original utility, design, or plant nonprovisional applications, regardless whether they were examined under Track 1 (prioritized examination). In rare cases where applications or proceedings are already treated as special during appeal, the F-TAPP is unavailable.

Q: When can a petition be filed?
A: A petition can be filed any time after the date when the PTAB issues a notice that the appeal has been docketed to the PTAB (after a reply brief is filed). As such, petitions may be filed regardless of whether the appeal is newly docketed or was previously docketed.

Q: How are petitions decided?
A: The USPTO has limited the number of granted petitions to 125 per quarter for the duration of F-TAPP. Petitions meeting procedural requirements will be automatically granted for entry into the F-TAPP, based in the order they are received. A decision on a petition to accord fast-track status is rendered within one month from the filing date of the petition. Petitioners may reapply if previous petitions are denied for entry.

Q: What are the petition requirements?
A: The petition requirements include a petition under 37 CFR 41.3 and a petition fee under 37 CFR 41.20(a). The petition must identify the application involved in the ex parte appeal by the application number and the appeal number for which fast-track review is sought. The USPTO has provided the “Petition—Fast-track Appeals Pilot Program” form (Form PTO/SB/451) for use in filing a petition under 37 CFR 41.3 for the F-TAPP. The form is available on the USPTO’s website . The petition must be signed by an applicant who is prosecuting the application’s own case or by a registered practitioner who has a power of attorney or has authority to act. The petition fee of $400 is required at the time the petition is filed. No refund will be granted for any reason.

Q: Can a fast-track status be removed?
A: Fast-track status may be removed voluntarily by an appellant, by filing a request for continued examination (RCE), or by a decision rendered by the PTAB.

Q: When can an appellant expect a decision from the PTAB?
A: The PTAB has set a target of issuing a decision within six (6) months from the date the petition is granted and the ex parte appeal is entered into F-TAPP. An appellant can expect to receive a decision within approximately ten (10) months from a final office action.

Q: Are there any changes to oral hearings before the PTAB?
A: Oral hearings in ex parte appeals accorded fast-track status will be conducted according to the ordinary PTAB hearing procedures. However, an appellant in an ex parte appeal accorded fast-track status cannot seek to relocate or reschedule the date and time of the hearing the hearing after receiving a Notice of Hearing, although the appellant may withdraw from the F-TAPP to regain the ability to relocate or reschedule the hearing.

Q: When is the F-TAPP over?
A: Petitions will be accepted until 500 appeals have been accorded fast-track status or until July 2, 2021, whichever occurs earlier. The F-TAPP may be extended on a temporary or a permanent basis after July 2, 2021.

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