The USPTO has started its appeal fast-track program — “Fast-Track Appeals Pilot Program.” The program includes a $400 cut-in-line progrea launches July 2, 2020. The required petition fee for cutting-in-line is $400. There are already a group of cases that are treated “special” for appeals, including reissues, reexaminations, and cases “made special.” But, the USPTO Examination Track-1 cases are not currently treated as special on appeal.
The Patent Act provides a right to appeal to the PTAB once your claims have “been twice rejected” and you have “paid the fee.” 35 U.S.C. 134(a). The fee structure is a bit unusual. It costs $800 to file a notice-of-appeal at which point briefing begins. Quite often examiners withdraw their rejections after seeing the patent applicant’s brief. Once the briefing is complete the case is ready to be “forwarded” to the Board — which requires $2,240. [Current Fees] There is also a $1300 fee if you want an oral hearing rather than having the PTAB decide your case on the briefs.
This is a good move from the PTO. A modest fee for a modest timing improvement. The current pilot is limited to 125 per quarter for the next year. 500 total before a reevaluation.
Modest timing improvement. The petition can be filed only after the case has been forwarded to the PTAB and the applicant has received an appeal docket number. From that point, the current PTO timeline is about 14-15 months for an ex parte appeal. The office is expecting that an expedited appeal will take about 6 months.
Note here that most cases are already pretty old by the time they get to an appeal. Folks have gone through a non-final rejection and a final rejection, and typically also one round of an RCE (request for continued examination) to attempt to resolve issues with the examiner. Most appealed cases are also not “original” application filings in that most claim priority to one or more earlier filed applications (US non-provisional; US provisional; PCT international application; or foreign application filing).
After the final rejection, a patent applicant has a six-month deadline for filing a notice of appeal (NOA) followed by an appeal brief within two-months of the NOA. The examiner then has two months to file a responsive brief (answer). And, that may be followed by a reply brief. The fast-track will not impact these timelines.
Federal Register Notice: https://www.federalregister.gov/documents/2020/07/02/2020-14244/fast-track-appeals-pilot-program