In a March Federal Register Notice, the USPTO outlined a new procedure for eliminating redundant appeal processing in patent applications. The redundancy was the result of both the examiner and BPAI performing the same review as to whether or not an Appeal Brief was compliant with the rules. Often times this led to the examiner accepting a non-compliant brief only to have the Board kick it back to applicant months or even years later for a previously overlooked informality. Likewise, some complained of examiners abusing the non-compliance notice as a way to avoid answering appeal briefs. The notice of March outlined a new mechanism by which the Chief Judge would be solely responsible for determining brief compliance prior to Examiner review. At the end of this notice, the USPTO pointed out that ex parte and inter partes patent reexamination appeals were not subject to the new mechanism, but the Office was considering such treatment in the future.
Yesterday, the same mechanism was noticed in the Federal Register for ex parte patent reexamination appeals. A notice relative to inter partes is expected in the near future. These improvements should help avoid some of the more aggravating delays experienced on appeal to the BPAI. Of course, with a significant, and growing appeal backlog, any impact of this change may be offset by sheer numbers.