BPAI Appeal Load Out of Control

As a follow up to my June post on the looming crisis at the BPAI, Chief Judge Michael Fleming has issued some new statistics on the Board of Patent Appeals and Interferences’ current workload.

The Board is now projecting that it will issue 7,000 decisions in ex parte appeals in FY2009 (which ends Wednesday).  This is a 41.7% increase over the number issued in FY2008.  The number of newly docketed appeals has been growing exponentially.  In FY2007, 4,639 appeals were docketed.  This number increased by 37.6% to 6,385 in FY2008 and is projected to increase by 143% to 15,500 in FY2009. 

During that same time, appeal pendency has increased from 5.4 months to about 8 months.  The Board is projecting a minimal increase in new appeals in FY2010 to 16,000, with pendency increasing to about 14 months.

Meanwhile, appeal inventory (appeals to be decided) has increased from about 2500 in FY2007 to about 12,500 in FY2009 and is projected to increase to 21,500 in FY2010.  This means that if no additional appeals are filed after the end of FY2010, it would take the Board about 37 months to clear its docket.

To address this situation, the BPAI has been hiring new judges and patent attorneys to assist the judges in deciding the appeals.  The Board plans to hire 21 more judges and 29 patent attorneys during FY2010 at a cost of nearly $6.5 million in an effort to reduce appeal pendency.  The Chief Judge’s presentation did not address attrition, so it is difficult to know by how much the size of the Board will actually increase.

The projected numbers are rightfully pessimistic in the short term and seem overly optimistic in the longer term.  The number of appeals filed should decrease, however, once it becomes absolutely clear that the PTO will not be implementing the dreaded rules package that would have limited the number of RCE and continuation filings.  If they don’t implement the onerous appeal brief rules, this should help too. 

Otherwise, the PTO could simply change the attitude of the examining corps to get them to work better with applicants, thereby reducing the need for many appeals.

HT:  Patently-O.

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4 Responses to “BPAI Appeal Load Out of Control”

  1. David Boundy Says:

    The last paragraph hits the nail on the head. In the last couple years, 90% of appeals have resulted in the examiner being outright reversed, or at least vacated. Ron Katznelson assembled data from the PTO’s web site and Freedom of Information Act requests here:

    http://works.bepress.com/cgi/viewcontent.cgi?article=1053&context=rkatznelson slide 15

    The appeal load arises from a 90% defect rate by examiners, at least on contested issues. That’s the backlog problem, it’s the appeal problem, it’s the antagonism problem between the examining corps and the bar.

  2. Wolf45 Says:

    This means that traffic is backed way the hell up. ,

  3. New BPAI Rules Raised Again « INVENTIVE STEP Says:

    […] BPAI does need to take steps to reduce the crazy situation involving an appeal docket that is growing at an exponential pace.  It is difficult to tell how much effect these rules would have on that […]

  4. PTO BPAI Roundtable « INVENTIVE STEP Says:

    […] Barner and Fleming gave some sobering statistics on appeals.  The average pendency from the time of filing a notice of appeal until a decision by the BPAI has risen from 27.5 months at the end of FY2008 to 29.3 months at the end of FY2009 and is expected to rise by several more months by the end of FY2010.  The average pendency from the time an appeal is docketed by the BPAI to a decision rose from 7.7 to 9.9 months from FY2008 to FY2009 and is expected to rise to 14.4 months by the end of FY2010.  The cause of this, of course, is the substantial increase in the number of appeals filed. […]

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