USPTO Fast-Track Appeals Pilot Program – An Update

As reported in the Staas & Halsey New Bulletin of July 13, 2020, the United States Patent and Trademark Office (USPTO) launched a Fast-Track Appeals Pilot Program to speed up patent examination and ex parte appeals. Under the Fast-Track Appeals Pilot Program, the USPTO expected the average ex parte appeal to be decided within six months from the date a petition to request the fast-track appeal was granted.

On February 18, 2021, an update to the Fast-Track Appeals Pilot Program was provided during a “Boardside Chat” presentation given by a panel including two Administrative Patent Judges from the Patent Trial and Appeal Board (PTAB). During the presentation, preliminary results regarding the Fast-Track Appeals Pilot Program indicated the average time to decision on appeal was much shorter than six months, and was actually averaging 1.9 months. The time to decide the petition to participate in the Fast-Track Appeal Pilot Program was also only 1.5 days with virtually all petitions being granted except in those cases where the appeal had not yet passed on to the PTAB’s jurisdiction.

Furthermore, the panel emphasized that the Fast-Track Appeals Pilot Program was not being utilized to its full potential. That is, while the Fast-Track Appeals Pilot Program limits the number of granted petitions to about 125 per quarter, only 62 petitions were received in the first quarter and only 42 were received in the second quarter. As of March 5, 2021 (and for the quarter ending on March 31, 2021), only 35 petitions were received. Therefore, a petition to participate in the Fast-Track Appeals Pilot Program is very likely to be granted as the number of petitions received thus far has not come close to the 125-petition limit.

The panel agreed that the Fast-Track Appeals Pilot Program was working as intended by providing expedited decisions in about 1.9 months from the date that the petition was granted. This is quicker than the six-month anticipated decision time, and much faster than the typical 13-month average time to decide an appeal overall.

Statistics from the panel’s presentation (reproduced above on the left) show that most petitions are filed in Technology Centers 3600 (business method/mechanical), 1600 (bio/pharma), and 2600 (electrical/computer). These statistics appear to be reflective of the number of appeals filed (TC 3600 files the most) and a desire to expedite prosecution (TC 2600 having the second-longest pendency for appeals as shown in the chart above on the right).

Conclusion

To participate in the Fast-Track Appeals Pilot Program, a fee of $420 must be paid and the appeal must be an ex parte appeal for which a Notice of Appeal has been filed and a PTAB Docketing Notice has been issued by the USPTO.

Applicants who wish to expedite prosecution of an application under appeal should strongly consider participating in the Fast-Track Appeals Pilot Program to have the appeal decided out of turn. Participation in the Fast-Track Appeals Pilot Program is not limited to new appeals. Therefore, pending appeals in which a docketing notice has already been issued can still file a petition to have the appeal expedited.