AIA Trials Drive PTAB Growth to 235+ Judges

The Patent Public Advisory Committee (PPAC) held its quarterly meeting last week at USPTO headquarters in Alexandria Virginia. Updates from the USPTO included a report from the Patent Trial & Appeal Board (PTAB) on appeal and AIA trial proceedings. Much of the report was directed to the subject of the recent Federal Register Notice seeking comment on AIA trial proceedings, however, there were some updates of note.

The PTAB reports that come October the AIA Trial Section will be the largest section of the Board. To put this growth in perspective, the Board was comprised of 70 judges, total, in 2011. The AIA Trial Section is already at 85 judges, and growing. (Other sections of the Board include patent interferences, patent reexamination appeals, ex parte application appeals, and management). The Board is expecting to reach 235+ total judges by October. The boost of judges to the trial section is necessary to decide the growing influx of AIA challenges within the 12-month statutory mandate.

Of course, it wont be long before ex parte appellants, especially small/independent inventors, use this growth on the post-grant side as a rallying cry of unfairness. In other words, in the face of a 25,000+ ex parte application appeal backlog the agency is throwing more bandwidth at “killing patents.”  Not a fair or accurate criticism, but one that is fully expected in the months ahead.

In other PTAB news, the Board noted the recent designation of a precedential decision, and several informational.
Precedential Opinion
–Securebuy, LLC v. CardinalCommerce Corporation (CBM 2014-00035)

Informative Opinions
–International Flavors and Fragrances Incorporated v. The United States of America (IPR 2013-00124)
–Idle Free Systems, Incorporated v. Bergstrom, Incorporated (IPR 2012-00027)
–Garmin International, Incorporated v. Cuozzo Speed Technologies LLC (IPR 2012-00001)

To date, the above 2012-13 decisions have been treated as de facto “informational” by PTAB panels. As such, the recent designation of such as informational is not a significant event. Garmin, on the other hand, is applied in a more precedential manner, but is only designated as “informational.” This may be a reflection of the difficulties of designating an opinion as precedential (requires a majority vote) as the trial section grows in size. On the other hand, since additional discovery is always a hot topic, the PTAB may be keeping their options open until after the public has had a chance to respond to the outstanding Federal Register Notice.