With the common calendar, February deserve to be 28 days, but with January and also March’s 62 days, the 3 months of January with March is 90 job (except because that leap years). Three months for various other calendar months deserve to be as much as 92 days. Yet is there constantly something in the selection of 90 come 92 days in three months at the Patent Trial and Appeal plank (PTAB) in inter partes reviews (IPRs)? No. V them, the selection can it is in from 90 come 120 days and more. Don’t believe it? check out on.

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For many years, the PTAB was the end on the roadway with a roadshow, selling to that audience a graphic favor the one below. Look at the duration for a “PO Preliminary Response,” the is a patent owner’s preliminary solution period. 3 months, right? In fact, “No much more than 3 months,” right? and “No more than 3 months” native “Petition Filed,” right? for this reason it would certainly seem. Three months is three months, 90 come 92 days.

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But the PTAB marketed its IPRs therefore well the it recently has actually had an ext IPR petitions 보다 it seems to be able to handle. In the an initial half the its fiscal year 2017, the PTAB got 1,044 IPR, spanned business method (CBM) reviews, and also post provide review (PGR) petitions, a speed that if ongoing through the full year would view 2,088 IPR, CBM, and PGR petitions. That would certainly be hundreds much more than past years’ yearly totals, and specifically, hundreds more than the 1,683 proceedings the 2016.

The upshot reportedly has been at times an overwhelmed PTAB staff. Consider, because that example, IPR2017- 00860, in ~ random. A notice confirming the filing day of the petition noted a date of February 7, 2017. Yet the date of the an alert was march 9, 2017.

What distinction does the make that it took more than a month because that a notice to problem that the petition was according a filing day for the day it was actually filed? It provides a distinction — the difference is whether the patent owner preliminary an answer is early out by a day like might 7, 2017, or a date like June 9, 2017, a difference of 33 days, more than a month. That 33 job kicks ago every adhering to due date in an IPR one equal number of days. The school decision meeting goes ago 33 days, for example.

Each “Notice that Accord filing Date” gone into at the PTAB, as in IPR2017-00860, states the following: “Patent Owner may record a preliminary response to the petition no later than three months native the date of this notice” (emphasis added). That’s right, the patent owner is routinely given three months from the date of the notice — a notification that could have taken 30 or an ext days to issue — to paper a patent owner preliminary response, not 3 months from the date of the petition being filed.

Compare the passage of time for the notification in IPR2017-00860 to the passage of time in IPR2017-00001. In the earlier IPR case, the notification took, indigenous the petition filing day of October 1, 2016, come the an alert date that October 4, 2016, three days.

With the graphic over having been touted by the PTAB, is the an alert issued “Notice of Accord filing Date” legitimate in setup the patent owner preliminary solution date? The patent law of IPRs offers that the period for a patent owner preliminary solution is “a time duration set through the manager .” 35 U.S.C. §313. The director, by regulations, set this time period: “The preliminary solution must be filed no later on than 3 months after the date of a an alert indicating that the request to academy an inter partes review has actually been granted a submit date.” 37 C.F.R. §42.107. Answer, it’s legal: the patent owner preliminary response can it is in filed 3 months after the day of a “Notice that Accord submit Date,” no the sooner 3 months native the submit of the petition.

So friends, in the PTAB in IPRs, how numerous days deserve to there be in three months, 90, 91, 92? The calendar claims yes. The U.S. Patent and also Trademark Office graphic states yes. However the IPR regulation says no, there have the right to be as many as three months to add the number of days, but many, that takes the PTAB staff after receipt of an IPR petition to issue a “Notice of Accord filing Date.” by example, three months deserve to be at least a calendar’s maximum 92 work plus another 33 days, definition 125 job — a total that is more than a month past three months. Petitioners, take note, calculate your schedule based upon the workload in ~ the PTAB. And avoid dependence on USPTO graphics.

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Could this be a issue of part petitions difficult many claims, having many grounds, relying on plenty of exhibits, or utilizing the full word counting allowed, 14,000? carry out such petitions take much longer to review and accord their filing date? In IPR2017-00863, two cases were tested on one ground with 20 exhibits and a word counting of 8,221 words. Testimonial took from submit on February 9, 2017, to according the filing date on march 6, 2017. Through this example, that isn’t intricacy that is slowing under reviews. Might it be bad organization of part petitions? not from the petitions referenced here; they are well organized. Could it be the PTAB is slow-rolling the workload, specifically for computer-related technologies, allowing its judges a better chance to store up? IPR2017-00863 was on computer system network packet processing. A petition filed April 4, 2017, that got its notice April 12, 2017, IPR2017-1100, to be on biotechnology. Or it might be that PTAB staff has actually just been backed up.