USPTO Announces Expedited Patent Appeal Pilot Program

I am pleased to announce a new pilot program that will allow appellants with multiple ex parte appeals pending before the Patent Trial and Appeal Board (Board) to expedite review of one appeal in return for withdrawing another appeal.  The Expedited Patent Appeal Pilot will allow appellants having multiple ex parte appeals currently pending before the Board to have greater control over the priority with which their appeals are decided and reduce the backlog of appeals pending before the Board. 

Appeals to the Board are normally taken up for decision in the order in which they are docketed.  The current average pendency of an appeal at the PTAB is approximately 30 months.  The USPTO is adopting, on a temporary basis, the Expedited Patent Appeal Pilot, under which an appellant may have an ex parte appeal to the Board in an application accorded special status if the appellant withdraws a pending appeal in another application or ex parte reexamination.  An appeal that is accorded special status under the Expedited Patent Appeal Pilot will be advanced out of turn for a decision on the appeal by the Board.  The goal of the pilot program is for the PTAB to render a decision on the appeal accorded special status no later than six months from the date of filing of the petition.  The Expedited Patent Appeal Pilot will permit an appellant having multiple appeals pending before the Board to accelerate the Board decision on an appeal involving an invention of greater importance to the appellant, possibly hastening the pace at which the invention is patented and products or services embodying the patent are brought to the marketplace, and thus spurring follow-on innovation, economic growth, and job creation, by foregoing another pending appeal in which the underlying invention is no longer a business pursuit or priority to the appellant.

Appellants wishing to participate in the pilot program need only make a certification and file a petition to the Chief Judge under 37 C.F.R. § 41.3.  We have waived the petition fee and provided a form-fillable PDF (Form PTO/SB/438) for use in filing the certification and petition.  Although an application having no allowed claims becomes abandoned upon withdrawal of an appeal, applicants are permitted under the pilot program to file a Request for Continued Examination (RCE) in the application of the appeal sought to be withdrawn to continue prosecution and avoid abandonment of that application.   An appellant wishing to file a RCE in an application in which there is an appeal to be withdrawn under the Expedited Patent Appeal Pilot must, if there are no allowed claims, file the RCE with the petition under 37 C.F.R. § 41.3 to ensure that the RCE is filed prior to abandonment of the application that will result from the dismissal of the appeal.

For more information about the pilot program and how to participate, please refer to the Federal Register notice at