PTAB Expanded Panels Impact Less Than 1% of All AIA Trials
Last week the Court of Appeals for the Federal Circuit (CAFC) issued its decision in Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. (here) The decision affirmed the USPTO’s Patent Trial & Appeal Board cancellation of certain claims of Nidec’s U.S. patent 7,626,349 (IPR2014-01121 & IPR2015-00762). In this regard, the opinion was rather unremarkable. Of particular interest to PTAB critics, however, was the Court’s discussion of the Board’s expanded panel practices in its concurring opinion.
Although conceding it had no impact on the outcome of the case, the concurrence took issue with the Board’s expansion of a rehearing panel for the stated purpose of reversing the earlier decision. That is, in order to consistently treat questions of issue joinder under 35 U.S.C. § 315(c), the PTAB expanded a panel to include judges that had ruled differently on the same question of statutory interpretation. As a result, the expanded panel reversed the earlier decision and found issue joinder to be embraced by 315(c). The Federal Circuit signaled a strong distaste of such agency practices.
Critics were quick to lambaste the PTAB’s expanded panel process in Nidec as evidence of a crooked process and an anti-patent bias. Of course, anyone that has followed this blog knows that to be false.