What is a Fast-Track Appeal?
Appealing a rejected patent application can take years. Normally, an appeal to the PTAB would be taken up for decision in the order in which it was docketed. To shorten the ex parte patent appeal process, the USPTO launched a Fast-Track Appeals Pilot Program on July 2, 2020. This is a temporary USPTO program that advances certain appeal cases out of turn. An eligible appellant would be able to cut in line and get their case ahead of other appealed applications.
Which patent appeals are eligible for the fast-track pilot progam?
Not all appeals will qualify. To be eligible, the following conditions must be met:
- Application type: Must be original utility, design or plant nonprovisional application;
- Status of appeal: A Notice of Appeal has been filed and a PTAB docketing notice has been issued by the USPTO (i.e., appeal pending before PTAB);
- Petition: a Fast-Track Appeals Pilot Program petition must be e-filed; and
- Petition fee: $400
Which patent appeals are not eligible?
Patent applications with a priority claim to an earlier-filed application, whether US or foreign, would not be original.
The status of the appeal is key in determining whether a case is eligible for fast-track advancement of out turn. In particular, the PTAB docketing notice will be issued only for cases in which an Examiner’s Answer has been filed and the applicant has paid the USPTO forwarding fee to forward the case to the Board.
After the applicant has submitted an appeal brief, it is not uncommon for the examiner to close the appeal process by reopening prosecution. What follows may be another Office Action or, hopefully, an allowance. If prosecution has been reopened, the appeal is technically over so the applicant would not be able to petition for fast-track status.
How long would a fast-track appeal take?
After a PTAB docketing notice has been issued, the current timeline for a appeal decision is roughly 14-15 months. The target for fast-track appeals is to reach an appeal decision within 6 months of the grant of the petition.
Is there a limit to fast-track appeals?
There is a 125 maximum limit per quarter, and a 500 annual limit to the amount of fast-track appeals that will be granted. You can check the number of granted petitions here. The pilot program is also set to expire in one year, although the USPTO might consider might consider extending the program on either a temporary or permanent basis.