On July 18, the US Patent and Trademark Office (USPTO) announced a revised practice for setting Patent Trial and Appeal Board (PTAB) filing dates for post-grant proceedings. Effective immediately, the PTAB will issue Notices of Filing Date Accorded within 14 days of petition filing, unless exceptional circumstances prevent timely issuance.
By way of background, the statutory deadlines governing post-grant proceedings are not based on the date the petitioner files the petition, but rather the date the Board issues the Notice of Filing Date Accorded, which occurs only after the Board determines that the petition meets all filing requirements. Without a standardized deadline, PTAB practitioners were unable to anticipate the statutory deadlines for their post-grant review proceeding until the Board issued the Notice of Filing Date Accorded. By standardizing the issuance timeframe, the PTAB aims to provide greater predictability for petitioners, patent owners, and the public regarding key deadlines and decision timelines.
The timeline has also become increasingly significant under new polices put in place by acting USPTO Director Coke Morgan Stewart who rescinded the 2022 Vidal memo and reshaped discretionary denials in post-grant proceedings. Stewart now makes all discretionary denials of petitions herself and has denied petitions involving parallel proceedings where the district court’s trial date is scheduled to occur before the Board’s statutory deadline for issuing its final written decision. Under Stewart’s application of the Finitiv factors, greater emphasis is placed on proximity of the district court’s trial date to the Board’s projected statutory deadline for a final written decision, which is triggered by the Notice of Filing Date Accorded.
Key Takeaways
- Predictable Timelines: Litigants can expect more reliable scheduling for post-grant proceedings, aiding in strategic planning and resource allocation.
- Transparency: The new practice enhances transparency in PTAB operations, reducing uncertainty for all stakeholders.
- Limited Exceptions: While most notices will be issued within 14 days, parties should remain aware of potential delays in extraordinary circumstances.
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