With the common calendar, February have the right to be 28 days, however with January and March’s 62 days, the 3 months that January v March is 90 work (except for leap years). Three months for various other calendar months deserve to be up to 92 days. Yet is there always something in the range of 90 to 92 job in three months in ~ the Patent Trial and also Appeal plank (PTAB) in inter partes reviews (IPRs)? No. Through them, the selection can be from 90 come 120 days and more. Don’t believe it? review on.

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For numerous years, the PTAB was the end on the roadway with a roadshow, offering to the audience a graphic favor the one below. Look at the period for a “PO Preliminary Response,” the is a patent owner’s preliminary response period. Three months, right? In fact, “No an ext than 3 months,” right? and “No an ext than 3 months” indigenous “Petition Filed,” right? therefore it would certainly seem. Three months is three months, 90 come 92 days.

Click right here to see image.

But the PTAB offered its IPRs so well that it recently has actually had much more IPR petitions 보다 it appears to have the ability to handle. In the an initial half that its budget year 2017, the PTAB received 1,044 IPR, covered business an approach (CBM) reviews, and also post grant review (PGR) petitions, a pace that if continued through the full year would check out 2,088 IPR, CBM, and also PGR petitions. That would be hundreds more than previous years’ yearly totals, and also specifically, hundreds more than the 1,683 proceedings of 2016.

The upshot apparently has gone to times an overwhelmed PTAB staff. Consider, for example, IPR2017- 00860, at random. A an alert confirming the filing day of the petition noted a day of February 7, 2017. However the date of the notification was march 9, 2017.

What difference does it make the it took more than a month because that a notification to concern that the petition to be according a filing day for the date it was in reality filed? It makes a distinction — the distinction is whether the patent owner preliminary response is due by a day like may 7, 2017, or a day like June 9, 2017, a distinction of 33 days, more than a month. That 33 days kicks back every complying with due date in an IPR an equal variety of days. The school decision meeting goes ago 33 days, for example.

Each “Notice of Accord filing Date” gotten in at the PTAB, together in IPR2017-00860, states the following: “Patent Owner may file a preliminary response to the petition no later than 3 months indigenous 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 an alert that might have take away 30 or much more days to worry — to record a patent owner preliminary response, not 3 months native the day of the petition being filed.

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

With the graphic over having to be touted by the PTAB, is the an alert issued “Notice of Accord submit Date” legitimate in setup the patent owner preliminary response date? The patent legislation of IPRs offers that the duration for a patent owner preliminary solution is “a time period set by the manager .” 35 U.S.C. §313. The director, through regulations, set this time period: “The preliminary solution must it is in filed no later than three months after the date of a an alert indicating the 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 solution can it is in filed three months ~ the date of a “Notice that Accord submit Date,” not the sooner 3 months from the submit of the petition.

So friends, in the PTAB in IPRs, how numerous days can there it is in in three months, 90, 91, 92? The calendar says yes. The U.S. Patent and Trademark Office graphic states yes. But the IPR law says no, there have the right to be as numerous as three months plus the number of days, however many, that takes the PTAB staff after receipt of an IPR petition to issue a “Notice that Accord submit Date.” by example, three months can be at the very least a calendar’s preferably 92 job plus one more 33 days, an interpretation 125 days — a total that is much more than a month beyond three months. Petitioners, take note, calculate her schedule based on the workload in ~ the PTAB. And avoid dependency on USPTO graphics.

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Could this it is in a matter of part petitions challenging many claims, having numerous grounds, relying on numerous exhibits, or utilizing the full word counting allowed, 14,000? execute such petitions take much longer to review and also accord their filing date? In IPR2017-00863, two cases were challenged on one ground through 20 exhibits and also a word count of 8,221 words. Testimonial took from submit on February 9, 2017, to according the filing date on in march 6, 2017. By this example, the isn’t complexity that is slowing down reviews. Can it be negative organization of part petitions? no from the petitions referenced here; they space well organized. Can it be the PTAB is slow-rolling that workload, specifically for computer-related technologies, allowing its judges a better chance to save up? IPR2017-00863 was on computer network packet processing. A petition filed April 4, 2017, that got its notification April 12, 2017, IPR2017-1100, to be on biotechnology. Or it might be the PTAB staff has actually just to be backed up.