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Patent Trial and Appeal Board

The Patent Trial and Appeal Board (PTAB) is an administrative law body of the United States Patent and Trademark Office (USPTO) which decides issues of patentability. It was formed on September 16, 2012 as one part of the America Invents Act. As of July, 2015, the Chief Administrative Patent Judge is Nathan K. Kelley (acting).[1] Prior to its formation, the main judicial body in the USPTO was the Board of Patent Appeals and Interferences (BPAI).

Contents

  • Structure 1
  • Procedures 2
  • Appeals 3
  • Constitutionality 4
  • See also 5
  • References 6
  • External links 7

Structure

The PTAB is primarily made up of an Appeals Division and a Trial Division. The Appeals Division, with over 100 Administrative Patent Judges, handles appeals of patent examiner rejections, with sections adjudicating different technology areas.[2] The Trial Division, handles contested cases such as Inter Partes Review, Post Grant Review, Transitional Program for Covered Business Method Patents, and Derivation Proceedings.[3]

The PTAB is headed by a Chief Administrative Patent Judge, currently Nathan K. Kelley (acting),[4] with a Vice Chief, currently Scott R. Boalick (acting).[5]

Procedures

An applicant can appeal the examiner's decision to the PTAB. The appeal procedure is described in section 1200 of the U.S. Manual of Patent Examining Procedure (MPEP).[6] Typically, appeals to the PTAB are conducted ex parte. Decisions of the PTAB are typically rendered as an opinion.

Appeals

Decisions of the PTAB can be further appealed to the United States Court of Appeals for the Federal Circuit (CAFC) under 35 U.S.C. § 141(a). The decisions of the CAFC may also be reviewed on a discretionary basis by the United States Supreme Court. The U.S. Supreme Court is the ultimate authority on the judicial standards for patentability.

The United States Congress, however, can change the patent laws and thus override a decision of the Supreme Court.

An alternative path is a civil action against the Director of the United States Patent and Trademark Office in the U.S. District Court for the District of Columbia under 35 U.S.C. § 145. Any appeal arising from such a case would then be directed to the CAFC under 28 U.S.C. § 1295.

Constitutionality

In 2007, Professor John F. Duffy, a law professor, argued that, since 2000, the process of appointing judges to the BPAI (the PTAB's predecessor court) has been unconstitutional, because the judges were appointed by the Director of the U.S. Patent and Trademark Office rather than by the Secretary of Commerce (a "Head of Department" under the Appointments clause of the Constitution).[7] This problem has since been rectified and current Administrative Patent Judges are appointed by the Secretary of Commerce.

See also

References

  1. ^ IP360 News
  2. ^
  3. ^
  4. ^
  5. ^ Board of Patent Appeals and Interferences
  6. ^ USPTO, Chapter 1200 Appeal, Manual of Patent Examining Procedure.
  7. ^ John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007, Patently-O Patent L.J. 21, or Duffy, John F., "Are Administrative Patent Judges Unconstitutional?" . Available at ssrn.com

External links

  • Board of Patent Appeals and Interferences (BPAI) on the USPTO web site
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