The United States Patent and Trademark Office (“USPTO”) recently rolled out a new “Fast-Track Appeals Pilot Program (the “Fast-Track Program”)” for expediting ex parte appeals of rejected patent applications.
Under the Fast-Track Program, which became effective on July 2, 2020, appellants can pay a $400 petition fee to expedite review. The USPTO has targeted issuing a decision within six months from the date the petition is granted and the appeal is entered into the pilot program (according to the USPTO, the current average appeal pendency is approximately 15 months). The USPTO will expedite 125 appeals per quarter and the program will expire on the earlier of July 2, 2021 or once 500 appeals have been expedited.
The Fast-Track Program complements the existing Track One prioritized examination program, which allows applicants to pay an additional fee to expedite review of a patent application and receive a final disposition of an application within 12 months of prioritized status being granted. In a statement announcing the new Pilot Program, USPTO Director Andrei Iancu said: “For the first time in USPTO history, applicants will be able to speed up both patent examination and ex parte appeals, thus obtaining decisions on their most important inventions in about half the time of a typical application.”
To qualify for the Fast-Track Program, an appellant must meet four conditions:
- The application must be an original utility, design or plant non-provisional application.
- The request for fast-track status must be for an ex parte appeal for which a notice of appeal has been filed and a PTAB docketing notice has been issued by the USPTO.
- The Appellant must file a petition under 37 C.F.R. § 41.3 which identifies the application and appeal by application number and appeal number for which fast-track review is sought.
- The $400 fee must be paid with the petition.
Hearings for Fast-Track Appeals
An appellant may request inclusion in the Fast-Track Program for ex parte appeals both with and without an oral hearing before the PTAB. Hearings under the Fast-Track Program will be conducted according to the ordinary PTAB hearing procedures.
The Future of the Fast-Track Program
The USPTO will evaluate the Fast-Track Program upon its conclusion to determine if it should be made permanent, and what, if any, changes would be required to allow for expedited ex parte appeals without adversely affecting the timely processing of other appeals before the PTAB. The USPTO may modify or terminate the program if a sufficient number of applicants do not take advantage of it.
The Fast-Track Program is an attractive option for parties desirous of an expedited ex parte appeal. However, since only 500 fast-track appeals are available over the 12-month period of the pilot program, time is of the essence to take advantage of the program.