Expedited Appeals

Posted Friday, October 30, 2015.

While the normal timetable for receiving a patent can be three years or more, the United States Patent and Trademark Office (USPTO) offers a number of programs for expediting review of a patent application once it is filed. Even the appeal process within the USPTO can be expedited through various programs. Appeals can often add three more years to the patent issuance timeline, so programs to expedite appeals are worth consideration.

Patent applications may be made special due to age or health of the inventor, or because the patent application relates to particular subject areas and for other reasons. A “made special” patent application will go to the top of an examiner’s docket once assigned to that examiner. Generally, that means the patent examiner completes work on the case being worked when the made special application is assigned, and then begins to examine the made special application. That status will follow an application right through the appeal process, if needed.

Additionally, the USPTO began the “Expedited Patent Appeal Pilot” earlier in 2015. It applies in instances where an applicant has at least two appeals pending (i.e. an appeal for each of two applications). A petition is submitted to the Patent Trial and Appeal Board (PTAB). There is no fee for participating in the program. The cost is that, in exchange for the applicant agreeing to withdraw an appeal, a second appeal will be advanced out of turn and receive quicker consideration by the PTAB.

The application for which the appeal is withdrawn may receive continued consideration at the patent office through filing a Request for Continued Examination (RCE) and paying the associated fee.

An appeal which is “made special” via this petition does not maintain its special status once the appeal is decided. That is, upon being returned to the examination corps from the PTAB, the application will go back into the normal queue for examination. That said, patent examiners generally work applications in order of earliest-filed first. So, if an application has been pending long enough to be twice rejected (the prerequisite for any appeal) and subsequently appealed, made special and remanded for further examination, it probably won’t be long before an examiner takes it up for additional action anyway.

Read more about expedited routes to patents here.

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