By Dennis Crouch
The PTAB continues to work on its 26,000+ backlog of ex parte appeals pending at the USPTO. The Board has reduced the backlog in seven of the past twelve months. However at the present rate, the backlog will not drop below 5,000 for more than twenty years. As the chart shows below, the large backlog of appeals cases is a historically new phenomenon.
The bread-and-butter of PTAB decisions involve questions of obviousness under 35 U.S.C. §103. In May 2013, for instance, about 94% of the ex parte PTAB decisions involved obviousness rejections. About 7% involved statutory-subject-matter (most of those also included obviousness rejections). As the PTO makes its push on claim-clarity, we can expect a growing number of appeals related to indefiniteness rejections.