PTAB’s two-for-one sale — three months on

Readers will recall that in June 2015 the Patent Trial and Appeal Board announced its Expedited Patent Appeal Pilot.  This is the program in which, if you have two ex parte appeals pending, you could abandon one of them and the PTAB would decide the other one faster.  I blogged about this program and I predicted that very few applicants would choose to use this program.  How did my prediction turn out?

To see how it has turned out, go to PTAB’s Expedited Patent Appeal Pilot web page and click on “Pilot Statistics”.  Right now it says this for the time interval of June 19, 2015 to September 9, 2015:

actual target
petitions filed 21
petitions granted 19
petitions denied 2
petitions pending
average time to decide petition (days) 2 60
number of decisions mailed on appeals made special 6
average time to decide appeal made special (months) 1 4


I predicted that after a year (in June of 2016), fewer than 500 of these two-for-one requests will have been filed.  In the first ten weeks of the program, just twenty-one requests were filed.  At this rate of filing, after a year has passed we might expect a hundred such requests to have been filed.  But common sense suggests that by now, just about everybody who was going to file such a two-for-one request will already have done so, for at least two reasons.

A first reason is that to use the program you need to have already had two appeals pending as of June 19, 2015.  The number of filers satisfying that requirement was capped as of that date and will only decrease with time (as old appeals get decided).

A second reason is that it would only make sense to use the program if you had at least one appeal the likely decision date of which was far enough in the future that this program would make a difference.  Each passing month, however, brings every appeal closer to getting decided even without this program.  So a filer who in June 2015 was eligible to use this program, and chose not to, is if anything less likely to use this program now in September of 2015.

I predict that the number of filings under this program will only diminish with time.  In the past ten weeks, twenty-one requests were filed under this program, and in the next ten weeks I predict even fewer requests will get filed.  The PTAB had capped the number of possible granted two-for-one requests at two thousand by June of 2016.  Given that in ten weeks only twenty-one requests got filed, and given that the rate of filing of such requests is likely to dwindle soon to zero, I predict the actual total by June of 2016 will be only thirty or so.  There is no danger of these filings hitting the cap of two thousand.

Having said all of this, it is only fair to note that the PTAB has well exceeded its two timeliness targets under this program.

The first target was how long it would take the PTAB to decide each two-for-one request.  The target was to get each request decided within two months of filing.  Instead of taking two months to decide each request, PTAB has managed to decide each request in a mere two days.

The second target was how long it would take the PTAB to decide the actual ex parte appeal in a case in which the PTAB had granted a two-for-one request.  The target was to get each ex parte appeal decided within four months of filing.  Instead of taking four months to decide each appeal, PTAB has managed to decide each request in a mere one month.


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