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Effective date of new BPAI appeal rules delayed pending completion of OMB review
December 09, 2008

Gene Quinn at the PLI Patent Law Blog reports that the new BPAI appeal brief rules, which were scheduled to go into effect for all appeal briefs filed on or after tomorrow, December 10, will be delayed. The Office of Management and Budget is still considering the various submissions and comments regarding the rules, including comments regarding the burden on practitioners to comply with the rules.

This is related to the fact that when the rules were originally proposed, the USPTO certified:

The proposed rules which change the format and content of briefs may require the appellant to spend additional time in preparing a compliant brief. The effect of such rules, however, will be to enhance the likelihood that the appealed claims will be allowed without the necessity of further proceeding with the appeal and improve the efficiency of the decision-making process at the Board. Any additional time burden that is imposed by the proposed rules relating to briefs is believed to be de minimus in comparison to the reduction in pendency that appellant gains as a result of early identification of allowable claims or a more efficient decision-making process. Moreover, the fees associated with filing an appeal with the Board are set by statute, and are not proposed for change in this rule making. These proposed procedural rules do not significantly increase the cost of filing or prosecuting an appeal before the Board.

Accordingly, these proposed rules do not have significant economic impact on a substantial number of small entities.

After this, the USPTO published another notice on June 9, 2008 seeking public comment regarding the economic impact of the proposed rules, and then published the final rules on June 10. The comments in response to this request were submitted to OMB in October, but OMB has not yet completed its review. This is the reason for the delay—one OMB completes its review, the rules will, most likely, go into effect.

While the exact effective date is not yet known, there will be at least another 30-day notice period before they go into effect, making the effective date at least sometime in January.

Update (12/10): The USPTO has now posted a notice to this effect on its site here.

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