Patent Law

The Board of Patent Appeals and Interferences has seen a tremendous upswing in its workload over the past couple of years. The swing was largely triggered by the prospect of rules limiting the filings of requests for continued examination (RCEs). However, it appears that applicants and patent attorneys - who are now familiar with the process - are continuing to see appeals as a viable alternative even though the RCE limits appears dead-in-the-water.

In a recent presentation, BPAI Chief Judge Fleming provided a useful survey of the "state of the Board." Highlights below.

• In FY2009, the BPAI is expected to have decided over 7,000 cases. That represents more than a 40% increase over FY2008.
• In addition, it is expected that over 15,000 cases will have been docketed to the BPAI in FY2009. That number is well over double those docketed in FY2008. This leaves an 'inventory' of about 12,500 cases.

In its current form, the BPAI cannot keep up with demand. By the end of FY2010, Judge Fleming expects the backlog to extend over 21,000 cases. The office currently has a three-prong approach to fixing the situation: (1) hiring more BPAI judges; (2) hiring more patent attorneys who essentially serve as law clerks, drafting opinions that are eventually approved by the Board; and (3) improving BPAI efficiency.

Notes:

View the presentation: bpai_092109.pps