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Are Ex Parte Appeals Really Getting Faster?

For at least the past two years, the PTO has reported significant decreases in the pendency of Appeals:

But how long to get the appeal docketed?

Color me skeptical, but the footnote on those two graphs (“Pendency is calculated … from board receipt date …”) made me suspicious. Just getting the PTAB accept and docket an appeal can sometimes feel like a herculean task. Two factors in time to get the appeal docketed are: (1) How long the examiner takes to answer the appeal brief; and (2) If (and how many times) the PTAB docketers return the appeal to the examiner for any one of seemingly innumerable reasons.

How much time from appeal brief to examiner answer?

 The chart above shows the average number of days from appeal brief to examiner answer. That the average is dropping is great news. But, we still haven’t even made it back to where we were in 2014.  Plus, the standard deviation is up the past two years, which means more applicants are seeing higher-than-average delays.

The next chart shows the distributions for 2012, 2015, and 2017.

How much time from answer to reply brief?

I didn’t bother including this chart because it was very consistently right at the two month deadline.

How much time from reply brief to PTAB decision?

As mentioned above, much of the variability in the appeals process has to do with formalities that must be addressed before the appeal ever gets on the PTAB docket. A decent proxy for the point at which an appeal gets docketed (and is in the hands of the PTAB judges) is when you have made it to the reply brief. The next chart shows that the PTAB judges are making pretty dramatic progress since the disaster that was 2015 and 2016.

For this metric you can see the PTAB judges are actually doing better than they were way back in 2012. BUT, there is a lot of variance in the distribution. In 2017:

  • ~3000 appeals went from reply brief to decision within 1 year
  • ~4500 appeals took between 1 and 2 years
  • ~2000 appeals took between 2 and 3 years
  • ~200 appeals took more than 3 years

The difference between 1 and 3 years could So, again, although the average going down is great news in general, that doesn’t really help the many many applicants seeing much higher than average delays. For a early stage technology company, the difference between 1 and 3 years could mean life or death.

How can you speed your appeal along?

The best thing you can do is dot all your i’s and cross all your t’s before filing your appeal brief. Make sure the appeal brief includes all the required information (maybe refer to some samples). Make sure there are no outstanding procedural issues that might get the appeal returned without being docketed. Make sure you are not appealing something that instead requires a petition. Failure to do this can cost you many months of delay.

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