When will the Board decide my patent appeal?

It’s been a while since I looked at the statistics of the Patent Trial and Appeal Board to try to guess when the Board might get around to deciding an appeal.  Here’s how it looks these days.

The case that got me thinking about this is one of our firm’s cases where we filed the Reply Brief on April 15, 2013.  A year has gone by and there’s some chance the client might ask what’s going on.

A first step was to see what the Board has published lately about its backlog or its rate of disposing of cases.  One gets sort of spoiled by the First Office Action Predictions from the Examining Corps, in which the Corps predicts when it might examine a particular case (as a function of the art unit and the filing date of the case).

The Board used to publish statistics, but as far as I can tell the Board discontinued this in September of 2013 (about seven months ago).  Nothing on the web page of the Board explains why seven months have passed since the last time it published anything about this.  Here is the graph that the Board published in August of 2013:

Board backlog

This graph suggests that in August of 2013, there were about 8500 cases with appeals pending that were fully briefed ten or fewer months earlier.  And it suggests that about 3800 cases had been fully briefed between eleven and thirteen months ago.  And that about 13500 cases had been fully briefed more than fourteen months ago.

Adding up these three numbers suggests that in August of 2013, there were about 25800 ex parte appeals awaiting decision by the Board.

Of course this does not tell us the number of cases awaiting decision in April of 2014.  But one may guess that roughly speaking, for each appeal that gets decided, maybe another appeal gets its reply brief filed.  If so then the number of appeals awaiting decision might still be around 25800.

The next stop for me was the Final Decisions search page.  A search for decisions in the past thirty days yielded about 640 appeals disposed of, or an average of about twenty-one dispositions per calendar day.  So at this rate the 25800 appeals might get disposed of in maybe 1230 days or about 3⅓ years.  That is to say at this rate the newest appeal might get decided in around August of 2017.

We might call that a “forward-looking” approach to guessing how long things might take.  One might also use a “backward-looking” approach.  We can look at some of the most recently decided appeals and ask how long ago the appeal brief got filed.  For my admittedly small sample, throwing out some outlying data points, the average number of days between the filing of the appeal brief and the decision by the Board was about 856 days or about 2⅓ years.  This suggests that the newest appeal might get decided in around August of 2016.

Many factors could push the actual future results up or down.  One factor is the big bolus of inter partes post-grant proceedings that have been filed in the past year or so.  These include Post Grant Reviews, Covered Business Method proceedings, Inter Partes Reviews, and Derivation Proceedings.  The Board is under pressure to decide each of these proceedings within 12 months of institution of the proceeding.  This might lead to some ex parte proceedings getting pushed to the back burner while the time-pressured proceedings get attended to.

Back to the pending appeal that got me thinking about this case.  Given that it was fully briefed about a year ago, I can thus guess that maybe the appeal in that case will get decided somewhere in the range of 1⅓ to 2⅓ years from now, that is, maybe in the range of August 2015 to August 2016.

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