BPAI Considering Expanding Per Curiam Decision Practices to Combat Backlog

At this week’s AIPLA Spring Meeting, Chief Judge Smith of the Board of Patent Appeals & Interferences (BPAI) provided an update on the Board’s staffing and productivity initiatives. As shown in his slides (here), the backlog of appeals continues to grow toward 30,000 cases. 

BPAIAs a result of the backlog, and the new trial mechanisms of the America Invents Act, the Board has increased hiring. Since hiring alone will not be enough to keep up with the workload, the Board is also contemplating expansion of the per curiam decision practice. This will allow the Board to issue decisions faster, based on the adoption of either the examiner or Appellant’s position. (Note: The Board’s per curiam practice is not akin to the Rule 36 affirmance practice of the CAFC). In practice, the Board provides a written explanation that is not attributed to a specific judge, and is likely to be far more concise than a regular opinion. (See 2011-002952) Authors of these opinions may be staff attorneys, or judges on a part-time/semi-retired status. The Board is now working with the Under Secretary and Solicitor’s Office to finalize the rules for expanding this practice.

It would seem unlikely that such decisions would be very common in Inter Partes Review, Post Grant Review, or the Transitional Business Method Patent Program. This is because such decisions are far more likely to be appealed to the CAFC as compared to ex parte application appeals, and challengers are paying a hefty fee to initiate them. While per curiam decisions have issued occasionally in patent reexamination proceedings, such is usually reserved for unique procedural situations (e.g., remand from CAFC on a new rejection issue).

A chart of the frequency of per curiam decisions to date is shown below.

per curiam