Boardside Chat Hints at Forthcoming Relief for Appellant-Applicants

On February 2, the U.S. Patent and Trademark Office (USPTO) hosted one of a series of Boardside Chats by the Patent Trial and Appeal Board (PTAB) to discuss, among other topics, ex parte appeal pendency. While the current PTAB statistics dashboard (reproduced below) indicates that the majority of current ex parte appeals remain pending for more than 14 months, the Board has reduced its ex parte appeal inventory by over 4% in the past three months.

Specifically, the Board has reduced its backlog of pending ex parte appeals by 1,665 appeals from September 8, 2015 to January 19, 2016, as shown in the bar graph below. While the total reduction may appear to merely be an incremental improvement, the rate of reduction shows significant improvement over fiscal year 2014, during which the number of pending ex parte appeals actually increased by 69 appeals.

The Boardside Chat also provided pendency statistics for appeals from each Technology Center (TC). As shown in the chart below, appeal pendency varies among Technology Centers. For example, ex parte appeals in applications handled by TC 2400, which handles inventions directed to cable television, computer networks, multiplex communications, voice‑over‑IP, compression, cryptography, and security, currently face the longest wait for a Board decision. In contrast, appeals from T Cs 1600 and 1700, which focus on inventions in the biotechnology and chemistry fields, are processed by the Board about 30% faster, with 27.7 and 24.5 months to a Board Decision on average, respectively.

As ex parte appeal pendency changes over time and varies among technology areas, Applicants may wish to consult the current appeal pendency statistics for the Technology Center assigned to their application when contemplating whether to reopen prosecution before the Examiner or appeal to the Board. Such statistics may assist Applicants in making patent portfolio decisions based on current business needs.

As with other Boardside Chats, the USPTO has provided the presentation materials to the public, selections from which were incorporated into this post.