Last week the USPTO unveiled its new “Data Visualization Center” which provides patent application pendency, backlog and examination data in a graphic “dashboard” format. While not as fancy, the Board of Appeals and Interferences also has published graphic data on its workload, with monthly statistics from May 2010 to August 2010. The Board’s data show that its backlog continues to grow at a tremendous rate, while its overall reversal rate for the current fiscal year (which ends at the end of September) is about 29%.

The Appeal Backlog

In an October 2009 presentation, Chief Administrative Patent Judge Fleming predicted that the number of appeals docketed to the Board would fall from 15,485 in fiscal year 2009 to 11,100 in fiscal year 2010, that the number of appeals decided would rise from 6862 to 7200, and that the total inventory of appeals at the Board would rise from 12,571 to 16,500. This prediction proved to be optimistic. According to statistics from August 2010, the Board received more appeals and decided fewer appeals, so that its inventory actually has risen even higher, to over 17,500 pending appeals.

Tracking the statistics from May 2010 to August 2010, the inventory rose from about 16,100 to over 17,500. More troubling, the inventory of cases pending at the Board for more than 14 months rose from 1,398 to 4,731.

The statistics for Technology Center 1600 (Biotechnology and Organic Chemistry) are interesting. The fiscal year started with 734 pending appeals, 864 new appeals were docketed, and 891 appeals were decided. While this means that the Board is barely staying ahead of its backlog, 1600 is the only Technology Center where the Board’s output (appeals decided) was greater than the influx of new appeals (appeals docketed to the Board). All in all, the Board started the year with over 12,500 pending appeals, added 11,400 new appeals, and decided almost 6,400 appeals. At this rate, the appeal backlog is going from bad to worse, and soon will reach unacceptable and intolerable.

The Board’s decisions have a 29% reversal rate, with a 32% reversal rate for Technology Center 1600 cases. 49% of the decisions are affirmances, while 14.5% affirm-in-part.

Appeal Brief Review

The Board also presents statistics from the new Appeal Brief Review program that transferred responsibility for reviewing Briefs for compliance with the formal Appeal Brief rules from the examiner to the Board. The Board has been able to review all Briefs within 30 days, with the vast majority being reviewed within 15 days. This is a tremendous improvement over prior processing, where an Appeal Brief could sit on an examiner’s docket for 2 months or longer before being reviewed. The statistics reveal a remarkably constant 8% non-compliance rate, with over 90% of briefs being accepted.

Solving This Problem

The Board is adopting a multi-faceted approach to solving this “numbers” problem. In particular, the Board is looking at ways to:

  • Reduce the number of appeals
    • strengthen the pre-appeal brief review program and appeal conferences
    • improve after-final practice
    • improve the quality of final rejections and examiner’s answers
  • Increase productivity at the Board
    • utilize clerks and paralegals
    • streamline procedures
  • Increase the Board’s capacity
    • hire more Administrative Patent Judges

Stakeholders will welcome any improvements that yield prompt, quality decisions on their patent applications, but addressing the root of the problem–the 30% erroneous rejections that make it through final office actions, appeal brief conferences and examiner’s answers–will provide the most cost-savings and expedite the grant of important patents that could stimulate further investment and promote economic growth.