The USPTO Director granted a request to extend a missed deadline for an appeal of an IPR decision to the Federal Circuit due to the patent owner’s excusable neglect in Mitsubishi Cable Industr., Ltd. v. Goto Denshi Co., Ltd., IPR2015-01108, Paper 28 (P.T.A.B. May 4, 2017).

On January 10, 2017, the PTAB denied Goto’s request for rehearing of its Final Written Decision. Thereafter, Goto had 63 days to file a notice of appeal to the Federal Circuit. But Goto filed its notice of appeal, along with a request for extension of time, seven days after the deadline had expired.

In general, the Federal Circuit possesses jurisdiction over an appeal from the USPTO once a party files a timely notice of appeal, after which the USPTO lacks jurisdiction except to perform purely ministerial tasks. In previous decisions, the Director concluded that the USPTO’s jurisdiction did not extend to ruling on a party’s request to extend time when the request was filed after a notice of appeal. Here, the Director reconsidered the USPTO’s prior conclusions and relevant precedent. The Director determined that the USPTO could decide Goto’s request for additional time because no binding precedent held that an untimely notice of appeal divests the USPTO of jurisdiction.

Turning to the merits of Goto’s request, the Director determined that, by rule, she may extend a missed deadline for a notice of appeal if the deadline was missed due to “excusable neglect.” Excusable neglect is determined by taking account of all relevant circumstances, including (1) the danger of prejudice to another party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. The third factor is the most important factor, but it does not control the overall determination.

With respect to the third factor, the Director found that Goto’s Japanese counsel did not communicate Goto’s decision to appeal to Goto’s American counsel because he believed that American counsel would file the appeal unless instructed otherwise. Goto’s American counsel believed the opposite—that they should not file an appeal unless affirmatively instructed to do so. Under the fourth factor, Goto’s Japanese counsel acted in good faith by reporting to the district court that it would appeal prior to the deadline and then acted quickly to remedy the missed deadline. The Director determined that the circumstances as a whole presented a “close question” that favored finding Goto had acted with excusable neglect. Therefore, the Director granted Goto’s request to extend the appeal deadline.