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Wednesday Aug 04, 2021

PTAB’s “Fast-Track” pilots available for regular and COVID-19 related ex parte appeals

Guest Blog by Scott Boalick, Chief Judge for the Patent Trial and Appeal Board

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The United States Patent and Trademark Office (USPTO) has two programs to expedite our turnaround time for ex parte appeals. By speeding up patentability determinations on new inventions, we aim to quicken the pace at which products or services embodied in these inventions reach the marketplace, spurring follow-on innovation, economic growth, and job creation.

Last year, the USPTO launched the first-ever, one-year “Fast-Track Appeals Pilot Program” to offer patent appellants a way to secure expedited resolution of any ex parte appeal. We just extended the pilot program to run for another one-year period through July 2, 2022. On April 15, 2021, we also launched a specialized Fast-Track Appeals Pilot Program just for COVID-19 related inventions.

To advance an appeal under the regular Fast-Track Appeals Pilot, an appellant must meet four conditions. First, the application must be an original utility, design, or plant nonprovisional application. Second, the appeal desired for fast-track status must be pending before the Patent Trial and Appeal Board (PTAB). Third, the appellant must file a petition to request fast-track treatment. And fourth, the appellant must pay a petition fee, currently $420.

For the COVID-19 Fast-Track Appeals Pilot, the first three requirements apply but the appellant is not required to pay a petition fee. In addition, the application must claim a product or process that is subject to an applicable FDA approval for COVID-19 use.

Since the regular Fast-Track Appeals Pilot’s launch through June 30, 2021, we have granted 197 petitions, on average within two days of filing. Merits-based appeal decisions were decided in an average of 2.1 months, much quicker than our fast-track target of six months to decision, and much quicker than the approximately 13-month average time to decide appeals overall.

To date, we have not received any petitions under the COVID-19 Fast-Track Appeals Pilot. The COVID-19 Fast Track Appeals Pilot is a companion to the COVID-19 Prioritized Examination Pilot Program, and applications that are under review in the COVID-19 Prioritized Examination Pilot feed into the COVID-19 Fast-Track Appeals Pilot. The COVID-19 examination pilot started a little more than one-year ago, and therefore applications under the COVID-19 examination pilot are only now approaching a second or final rejection, placing them in position for appeal.

In order to ensure that there is no adverse impact to appeal processing overall caused by the expedited turnarounds offered in the regular Fast-Track and COVID-19 Fast-Track pilots, size limitations have been placed on both pilot programs. Information on these limitations can be found on the Fast-Track Appeals Pilot and the COVID-19 Fast-Track Appeals Pilot pages of the USPTO website.

We remain committed to monitoring and evaluating the effects of both the regular Fast-Track Appeals Pilot Program and the COVID-19 Fast-Track Appeals Pilot Program. If you have any questions or comments about these programs, please email or fasttrackappeals@uspto.gov or COVIDfasttrackappeals@uspto.gov, respectively. Also, the webpages for the regular Fast-Track Appeals Pilot and the COVID-19 Fast-Track Appeals Pilot are replete with information, including current filing data and open slots for each program.

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