The U.S. patent system presents an interesting "tortoise and hare" dichotomy in which the pace of innovation and market forces continues to accelerate, thanks in part to the AIA switchover to a “first-to-file” system, while the USPTO struggles to keep up with the ever-increasing workload. Although the backlog has been significantly reduced when it comes to application examination and issuance, the appeals process continues to plod along at a glacial pace. According to recent USPTO figures, the current average pendency of an ex parte appeal is about 30 months, or two and a half years—seemingly forever in today’s fast-moving global economy.
A newly launched pilot program offers a glimmer of hope. By filing a certification and petition to the Chief Judge, an appellant can request expedited review of an appeal, and the petition fee is even waived. Appeals that are granted expedited review are moved to the top of the queue, with the goal being to render a decision on an appeal within six months from the filing of the petition for special status.
Of course, there is a catch: in exchange for expedited review of one appeal, the appellant must withdraw another currently pending appeal. While normally the application that is the subject of the withdrawn appeal would be abandoned (assuming no allowed claims), as part of the pilot program, a request for continued examination may be filed to keep the application pending.
The pilot program will likely be of most use to applicants who make extensive use of the appeals process, and who are willing to sacrifice one set of claims for the quick advancement of another. But unlike the original story of the tortoise and the hare, here, the hares of the global economy may well benefit from helping the USPTO tortoise pick up a little speed and get back in the race.
