Recently, the Patent Trial and Appeal Board (PTAB) announced a new interim procedure for decision circulation and internal review. This interim procedure is aimed at promoting feedback, eliminating inconsistencies, and increasing transparency during the decision pre-issuance process. The push for increased transparency comes as a result of last year’s Supreme Court decision in United States v. Arthrex, Inc. In response to the Arthrex decision, the USPTO emphasizes that “the interim process makes clear that the Director is not involved, pre-issuance, in directing or otherwise influencing panel decisions, and the PTAB panel has final authority and responsibility for the content of a decision.”
For its decision circulation and internal review procedures, the PTAB now utilizes a body of judges called the Circulation Judge Pool (CJP). The CJP is modeled after the Federal Circuit’s former Senior Technological Assistant Office and the Federal Circuit’s 10-day circulation process for precedential decisions. The CJP is made up of at least eight non-management PTAB judges intended to be representative of the technical and legal experience of the body of PTAB judges as a whole. Previously, before adopting the new interim process, the Board utilized of one of two internal review procedures: (1) peer review of AIA decisions prior to issuance and (2) PTAB management review of decisions addressing USPTO policy prior to issuance.
Under the new CJP model, before the PTAB issues a decision, a draft decision is circulated to the CJP and at least two CJP judges are required to review the draft decision. The type of decisions reviewed by the CJP include all AIA institution decisions; AIA final written decisions; AIA decisions on rehearing; decisions on remand from the Federal Circuit; inter partes reexamination appeal decisions; and certain categories of ex parte appeal, ex parte reexamination appeal, and reissue appeal decisions as designated by PTAB management.
The role of the CJP is to inform the panel of any inconsistencies with relevant authority, including existing case law, statutes, Director-written guidance, or USPTO policy. The CJP also provides edits and suggestions to improve readability and stylistic consistency. After the CJP reviews the draft, it is within the panel’s discretion to decide whether to incorporate the CJP’s feedback. Under this new model the Director does not participate in the review process prior to issuance of the decision, whereas previously it was required that drafts be review by Board Management.
The USPTO intends for the interim process to promote open decision making by emphasizing that the panel is not required to adopt the CJP’s suggestions and by making it so that members of Board Management do not provide feedback on decisions unless a member of the panel requests such.
Further details about the Board’s interim procedure can be found here.