Fast-Track for COVID-19 related appeals pilot program

1. What is the Fast-Track Pilot Program for Appeals Related to COVID-19? The Fast-Track Pilot Program for Appeals Related to COVID-19 is a way for an appellant to have a COVID-19-related ex parte appeal advanced out of turn before the PTAB. Under the Fast-Track Pilot Program for Appeals Related to COVID-19, an appellant may request expedited resolution of an ex parte appeal by filing a petition to the Chief Judge under 37 C.F.R. § 41.3, but without the fee that normally would be required with a petition to the Chief Judge.  Such petitions are expected to be decided within a few days of filing. The PTAB has a target of issuing a decision in an appeal under this program within six months from the date that the appeal is granted fast-track status.   
  
2. My application was previously granted special status under the COVID-19 Prioritized Examination Program. Will that status carry over from examination to my appeal? No. If an application was granted special status under the COVID-19 Prioritized Examination Program, the special status will not carry over to an appeal involving that application. An appellant must file a petition for inclusion in the Fast-Track Pilot Program for Appeals Related to COVID-19 with the PTAB, to obtain expedited resolution of an ex parte appeal by the Board. 

3. What is the effective date of the Fast-Track Pilot Program for Appeals Related to COVID-19? The effective date of the Fast-Track Pilot Program for Appeals Related to COVID-19 is April 15, 2021. This means that an appellant may file a petition for inclusion of an ex parte appeal in the Pilot Program starting on April 15, 2021.

1. How do I file a request for my ex parte appeal to be included in the Fast-Track Pilot Program for Appeals Related to COVID-19? You must file a petition under 37 C.F.R. § 41.3, preferably through the USPTO’s electronic filing system (Patent Center), in the application involved in the COVID-19-related ex parte appeal for which fast-track status is sought, identifying that application and appeal by application number and appeal number, respectively. The appellant may use the form-fillable Portable Document Format (PDF) “PETITION—Fast-Track for COVID-19 Related Appeals Pilot Program” (Form PTO/SB/454).  No fee is required with this petition.

2. Which ex parte appeals related to COVID-19 are eligible for the Fast-Track Pilot Program for Appeals Related to COVID-19? Ex parte appeals related to COVID-19 are eligible for the Fast-Track Pilot Program for Appeals Related to COVID-19 if the underlying application claims, products or processes that are subject to an applicable FDA approval for COVID–19. Such approvals may include, but are not limited to, an Investigational New Drug (IND) application, an Investigational Device Exemption (IDE), a New Drug Application (NDA), a Biologics License Application (BLA), a Premarket Approval (PMA), or an Emergency Use Authorization (EUA). The Pilot Program is not available for applications or proceedings that are already treated as special during appeal, such as reissue applications, reexamination proceedings, or appeals made special due to the age or health of an applicant.  See MPEP § 708.01 for a complete list of cases that are treated as special. Additionally, the COVID-19 Fast-Track Appeals Pilot Program is not available for appeals that already are expedited under the Fast-Track Appeals Pilot Program.

3. If an appeal is entered into the Fast-Track Pilot Program for Appeals Related to COVID-19, will the Board’s expedited review continue through rehearing? Yes. If an appeal is entered into the Fast-Track Pilot Program for Appeals Related to COVID-19, the Board will continue to give expedited review to the appeal through rehearing.

1. Is an appellant required to use the USPTO’s form to request inclusion in the Fast-Track Pilot Program for Appeals Related to COVID-19? No. An appellant is not required to use the USPTO’s form-fillable PDF “PETITION—Fast-Track Pilot Program for Appeals Related to COVID-19” (Form PTO/SB/454) to request inclusion in the Fast-Track Pilot Program for Appeals Related to COVID-19. However, if an appellant does not use the USPTO’s form, then the appellant must identify the application and appeal by application number and appeal number, respectively, in any written request submitted to the PTAB. The petition must certify that the application involved in the appeal claims a product or process subject to an applicable FDA approval for COVID–19 use.  Such approvals may include, but are not limited to, an Investigational New Drug (IND) application, an Investigational Device Exemption (IDE), a New Drug Application (NDA), a Biologics License Application (BLA), a Premarket Approval (PMA), or an Emergency Use Authorization (EUA).

  
2. Is there a fee for the Fast-Track Pilot Program for Appeals Related to COVID-19?  
No. The USPTO has decided to implement the Fast-Track Pilot Program for Appeals Related to COVID-19 without requiring payment of the petition fee under 37 C.F.R. § 41.20(a).

1. Why does the Fast-Track Pilot Program for Appeals Related to COVID-19 have a limit on the number of ex parte appeals related to COVID-19 entered into the pilot program? The Fast-Track Pilot Program for Appeals Related to COVID-19 is limited to 500 granted petitions. The USPTO placed limits on the number of petitions to be granted to allow for robust participation in the pilot program without compromising the PTAB’s ability to deliver on its pendency goals for other appeals.  

2. How will I know if the program limit has been reached? The USPTO will communicate the current number of granted petitions and available slots via the PTAB website COVIDFastTrackAppeals@uspto.gov, and appellants should take this information into account when making decisions on whether to file a petition.

3. I submitted my petition for inclusion in the Fast-Track Pilot Program for Appeals Related to COVID-19.  How long will it take to receive a decision on the petition?

You should expect to receive a decision on your petition to participate in the Fast-Track Appeals for COVID-19-Related Appeals in approximately two business days.

4. My appeal has been granted fast-track status under the Fast-Track Pilot Program for Appeals Related to COVID-19, when can I expect a decision? If an ex parte appeal is entered into the Fast-Track Pilot Program for Appeals Related to COVID-19, the PTAB has a target of reaching a decision on the appeal within six months from the date of entry into the Pilot Program. 

5. My appeal has been granted fast-track review under the Fast-Track Pilot Program for Appeals Related to COVID-19. If I file a request for continued a examination (RCE), will the case remain expedited for further prosecution? No. The fast-track status ends when the PTAB’s jurisdiction ends as set forth in 37 C.F.R. § 41.35(b).  Specifically, fast-track status ends when: (1) the Director or the PTAB enters a remand order; (2) the PTAB enters a final decision, and judicial review is sought or the time for seeking judicial review has expired; (3) an express abandonment is filed and recognized by the USPTO; (4) an RCE is filed; (5) the PTAB enters an order of dismissal; or (6) the appellant reopens prosecution, including in response to a new ground of rejection entered in a decision of the PTAB.

1. May I request an oral hearing if my ex parte appeal is accorded fast-track status under the Fast-Track Pilot Program for Appeals Related to COVID-19? Yes. Appeals included in the Fast-Track Pilot Program for Appeals Related to COVID-19 are eligible for oral hearings.

2. If I cannot attend the scheduled oral hearing, can the hearing be rescheduled and my appeal remain in the Fast-Track Pilot Program for Appeals Related to COVID-19? No. You may not request to reschedule an oral hearing and remain in the Fast-Track Pilot Program for Appeals Related to COVID-19. You may request to attend the hearing by video or telephone, in accordance with current PTAB hearing procedures. You may also waive the hearing and continue participation in the Fast-Track Pilot Program for Appeals Related to COVID-19. If you must reschedule the place, date, or time of the oral hearing, you may opt out of the Fast-Track Pilot Program for Appeals Related to COVID-19, thereby regaining the ability to reschedule or relocate the hearing as per ordinary PTAB hearing procedures.  

3. Can a Legal Advancement and Experience Program (LEAP) practitioner participate in an oral hearing for an appeal that is part of the Fast-Track Pilot Program for Appeals Related to COVID-19? 
Yes, LEAP practitioners may argue at hearings for appeals that are part of the Fast-Track Pilot Program for Appeals Related to COVID-19.  For more information, please visit the LEAP webpage.