Expanded Does Not Equal “Stacking”

As I explained previously, an expanded panel at the PTAB is an exceedingly rare occurrence.  But, as the Federal Circuit made clear in Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co.(here), on at least one occasion, PTAB panel expansion was utilized to drive uniformity on an inconsistently decided question of law (issue joinder). That is, an expanded panel was utilized to change the underlying decision in an issue joinder dispute.  PTAB critics were quick to latch onto this “panel stacking” as evidence of an anti-patent bias. This criticism was even echoed by the Supreme Court during the Oil States argument.

Since that time, the Board has continued to utilize expanded panels on issues of importance without changing the underlying result.  However, the recent panel stacking notoriety continues to haunt all expanded panel decisions.

Dispelling this perception, the Chief Judge clarified the purpose and framework of expanded panels during yesterday’s quarterly meeting of the Patent Public Advisory Committee (PPAC).
Continue Reading PTAB Explains Expanded Panel Rationales