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TAKEAWAY: Applicants may fast-track ex parte appeals to advance their appeals out of turn and receive a decision from the PTAB within an estimated six months.

The USPTO recently announced a new Fast-Track Appeals Pilot Program available to applicants seeking to overturn an adverse patentability decision through an ex parte appeal. Under the new pilot program, when an applicant’s appeal has been docketed at the USPTO Patent Trial and Appeal Board (PTAB), the applicant can file a petition with a fee payment to expedite review of the appeal.

Given the popularity of the Track 1 Prioritized Patent Examination Program, the PTAB has implemented this new pilot program to enable applicants to advance their appeal out of turn and be accorded fast-track status. The PTAB aims to issue a decision on the ex parte appeal within six months from the date the appeal is entered into the program. The average duration for an ex parte appeal is currently about 15 months.

To qualify for fast-track status under the new program, the USPTO has set the following requirements:

  • the application is an original utility, design, or plant nonprovisional application;
  • a notice of appeal is filed and a PTAB docketing notice issued;
  • a petition is submitted (e.g., using the USPTO’s new form-fillable PDF – Form PTO/SB/451); and
  • a fee of $400 is paid with the petition.

The PTAB will accept petitions under the Fast-Track Appeals Pilot Program for one year or until 500 appeals have been granted fast-track status, although the program may be extended. Applicants can check the number of granted petitions on the USPTO website.

Please see the Federal Register Notice for additional information regarding the Fast-Track Appeals Pilot Program.