New Internal Committee Structure to Appease Critics
Last week the PTAB announced a change to its internal handling of decisions. That is, while previously PTAB management reviewed certain decisions to ensure consistent treatment of relatively uncommon issues, that duty is now being passed to rank-and-file PTAB judges.
Why would anyone care about this (other than me), and why the change? Because the PTAB was plainly out-to-get innocent patent owners, that’s why!!
Kidding of course… but not really.
You see, previously, there was an internal committee that reviewed some AIA trial decisions, but not all. This committee, known as the AIA Review Committee (ARC) committee was made up of upper management (as one might expect such an oversight committee to be). For example, if a decision argued a procedural nuance, pure question of law, etc., the ARC would examine whether such decisions were consistent in answering such questions across panels.
PTAB critics were quick to complain that this secret “star-chamber” was out to destroy patents at the behest of big tech oligarchs. And that the former Director must be influencing this committee to make sure that patents were cancelled, overruling individual judges. (In realty, former Director Iancu pulled every lever possible to help patent owners, but, you can’t let facts get in the way of a good conspiracy theory.) Nevertheless, some Congressmen found the complaints plausible when the gov’t overplayed its hand in its Arthrex briefing as it related to Director influence. A letter was sent to the agency seeking elaboration on the gov’t claims in the briefing. Now that there is a new Director in place, recent changes make those answers very straightforward.
The ARC has been disbanded, and a new committee has replaced it performing the very same function. This committee, the Circulation Judge Pool (CJP) will include only non-management APJs, and consider all Board workflow (not just AIA trials). The CJP is modeled on a similar structure of the Federal Circuit. Examples of the decisions that are targeted for review are “notable draft decisions (such as decisions that address issues of first impression, that appear inconsistent with USPTO policy, or that involve areas where policy clarification may be needed.” The CJP suggestions are not binding on the panel. Presumably this was done to avoid any argument that members of the CJP are hand-picked to provide some kind of nefarious influence.
In any event, there you have it. More information than you need, on a process that no one should care about (other than wonks like me)