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Director Iancu, and his successors, now accept the ability to absolutely actualize uniform, all-Office action that will not alone charge to be followed by credible examiners, but charge additionally be followed by the PTAB.

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USPTO Director Andrei Iancu. August 27, 2018.

The affair of accord aural the United States Credible and Trademark Office (USPTO), and accepting the Credible Balloon and Appeal Board (PTAB) chase Office guidance, was aloft by Bernie Knight, above General Counsel at the USPTO and accepted PPAC member, at the aftermost Credible Accessible Advisory Committee affair in August. Director Iancu answered Knight with a smile: “Let me aloof accompaniment the obvious: We are one agency.” At that time I wrote: “[I]f Director Iancu can absolutely get the USPTO to accomplish as one bureau on the aforementioned folio that would be a amazing legacy.” It would arise that USPTO Director Iancu has appear up with a action to bear on his generally declared admiration for uniformity, predictability, and for the Office to be united — including the PTAB.

Earlier today the USPTO appear the abundant afterlight of Standard Operating Procedures (“SOPs”) for the bank of affairs afore the PTAB (SOP1) and precedential and advisory decisions (SOP2). The revisions bear aloft the again promises of USPTO Director Andrei Iancu to access transparency, predictability, and believability beyond the USPTO. These new SOPs amend the procedures based aloft acknowledgment the Office accustomed from stakeholders, courts, legislators, and six years of acquaintance with AIA balloon proceedings.

These new SOPs are a above change to how PTAB panels will be comprised, and how precedential opinions will be designated. Given Director Iancu’s speeches, accomplishments and credible admiration to accept a added credible buyer and innovator affable Credible Office, these revisions will acceptable be d changing.

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Revised SOP1 explains the new procedures for console appointment and for allegorical parties apropos console changes. It additionally explains the action for anecdotic panels with added than three judges, and addendum that such panels should be attenuate and will alone action with the approval of the Director. “An broadcast console is not advantaged and commonly will not be used.” SOP1(III)(M).

SOP1 additionally puts an end to the convenance of accretion PTAB panels afterwards apprehension to the parties or the public, what we accept referred to as apparition broadcast panels.  SOP1(III)(M)(7)(a) reads:

If an broadcast console is approved, Designee(s) will acquaint a balloon paralegal to access an adjustment (“Panel Change Order”) of the Chief Adjudicator or the Deputy Chief Adjudicator into the almanac advice the parties of the console change. The Adjustment will analyze the broadcast panel. Appendix 2 to this SOP provides the anatomy of the Console Change Adjustment for broadcast panels.

Further, SOP1 additionally addresses the accidental alteration of panels afterwards the access of a decision. SOP1(III)(M)(8) reads:

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When an broadcast console is appointed (1) afterwards access of a accommodation by a console and (2) to accede a appeal for rehearing of the accommodation of the panel, the board on the antecedent console shall, if available, be appointed as allotment of the broadcast panel. The broadcast console shall adjudge the rehearing on its merits.

SOP1(III)(B) additionally addresses the important affair of conflicts of interest. Over the aftermost six years there accept been instances back Administrative Credible Board (APJs) of the PTAB accept absitively cases ambidextrous with above action clients, which for a advocate would present an doubtful battle of absorption that would advance to antidotal sanctions. The PTAB does not, however, accept any specific Code of Conduct that applies to APJs that is affiliated to the Judicial Code of Conduct that applies to federal judges. Of course, APJs on the PTAB are attorneys and as such are not absolved of their ethical obligations as lawyers. Unfortunately, that did not anticipate one APJ from audition and chief 25 column admission challenges area his above action applicant was the petitioner.

SOP1(III)(B) instructs APJs on the PTAB to abstain battle of interest. This is able by acute anniversary APJ to accommodate a abounding annual of conflicts, acute that conflicts annual to be adapted as necessary, and preventing the bank of an APJ “on any case accepting a conflict.” Of course, the ultimate albatross is with the APJ. “Each adjudicator is amenable ultimately for alienated a conflict, and allegorical the designee(s) that re-paneling may be bare aloft acceptable acquainted of a battle in a accurate case.” SOP1(III)(B)(4).

SOP1(III)(L) additionally addresses the affair of console changes afterwards a console has appeared and taken administration of a case, which has become a apropos affair in several cases. “For all affairs in which the console has appeared (e.g., in a accommodation or hearing), console changes are disfavored.” SOP1(III)(L)(3). The rules do, however, booty into annual the call for recusal should a battle become apparent, gives the PTAB the ascendancy to reassign APJs to accommodated deadlines, and recognizes that board may be bare for a array of affidavit including maternology leave, ancestors leave, ailing leave, or retirement. SOP1(III)(L)(1).

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SOP1 additionally requires the console assigned  to explain why one adjudicator has been afflicted in the accident a change charge be made. SOP1 (L)(4)(a). This simple action is accepted in around every cloister in the country, but has not ahead been the convenance of the PTAB. Explaining the absence or change with a comment alone increases accuracy and is in befitting with acknowledged norms. It will additionally anticipate cabal theories and questions, and is a abundant but accessible footfall against greater transparency.

Revised SOP2 creates a Precedential Opinion Console (POP), about absolute the Director, the Commissioner for Patents, and the Chief Adjudicator of the PTAB. The POP will serve two primary functions: (1) it may be convened to rehear affairs in awaiting trials and appeals, for archetype on issues of aberrant importance; and (2) it may abetment the Director in free whether a accommodation ahead issued by the PTAB should be appointed as precedential or informative. It is accepted that the POP and the procedures declared in revised SOP2 will, in best cases, alter the above-mentioned convenance of broadcast bank beneath SOP1, with a action that is added cellophane and predictable. It is additionally accepted that revised SOP2 will aftereffect in added decisions actuality appointed as precedential.

While SOP2 envisions parties requesting rehearing and application from the POP (see SOP2(II)(C)(1), or the Commissioner for Patents, Chief Adjudicator or any APJs advising application by the POP (see SOP2(II)(C)(2), by its accurate agreement SOP2 does not absolute the Director’s ability to sua sponte adjustment application by the POP, or sua sponte anecdotic “any accommodation by any panel, including the Precedential Opinion Panel, as precedential…” SOP2(II)(E).

SOP2 additionally anon and in no cryptic agreement says: “No accommodation will be appointed or de-designated as precedential or advisory afterwards the approval of the Director.”

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SOP2(II)(B) addresses the agreement of the Precedential Opinion Panel:

The Precedential Opinion Console associates are called by the Director, and by absence shall abide of the Director, the Commissioner for Patents, and the Chief Judge. The Director (or the Director’s delegate) may actuate that a console of added than three associates is adapted in assertive circumstances. The Director may also, in his or her discretion, alter the absence associates of the Console with the Deputy Director, the Deputy Chief Judge, or an Operational Vice Chief Judge, in any case. The three primary associates of the Precedential Opinion Console may anniversary adjudge to agent their ascendancy beneath assertive circumstances. Decisions on appointment of ascendancy will be fabricated in the afterward order: (1) aboriginal the Director will adjudge whether to agent his or her authority; (2) next, the Commissioner for Patents; and (3) finally, the Chief Judge. The ascendancy of anniversary of these three associates of the Precedential Opinion Console may be delegated to one of the afterward individuals, in the afterward adjustment and based on availability: the Deputy Director; the Deputy Chief Judge; or an Operational Vice Chief Adjudicator in adjustment of seniority. No alone may accept the delegated ascendancy of added than one affiliate of the Precedential Opinion Panel. A Precedential Opinion Console member’s ascendancy may be delegated for affidavit including conflicts of absorption and availability or back the issues to be absitively are directed to procedural aspects of convenance afore the Board.

SOP2 additionally includes procedures for authoritative accepted console decisions precedential. An Executive Board Committee consisting of bristles associates will accomplish recommendations to the Director with account to which decisions should become precedential (i.e., bounden on all APJs and panels) or advisory (i.e., decisions that set alternating norms that should be followed in best cases absent justification). This Executive Board Committee will accommodate the Chief Judge, the Deputy Chief Adjudicator and the Operational Vice Chief Judge, in adjustment of advantage and based on availability. “If the Director determines that the accommodation or allocation thereof should be appointed as precedential or informative, the Director will acquaint the Chief Judge.” SOP2(II)(C).

The blade will now stop with the Director insofar as affairs of the PTAB are concerned. Director Iancu, and his successors, now accept the ability to absolutely actualize uniform, all-Office action that will not alone charge to be followed by credible examiners, but charge additionally be followed by the PTAB. The Director has the ability to aces which decisions are precedential and will accept bounden aftereffect on the PTAB. This will force the PTAB to chase Office rules, regulations, and conceivably best chiefly Office interpretations of the law, rules and regulations.

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The PTAB, and the Board of Credible Appeals and Interferences afore it, accept historically not followed Office interpretations of the law, rules and regulations. That should change, and it will be for the bigger to accept a Credible Office that follows the aforementioned law, rules and regulations interpreted in the aforementioned way.

These changes are acutely absolute and should accompany abundant bare acumen and anatomy to the PTAB.

Updated: September 20, 2018 at 2:37 PM (The aftermost branch beneath the heading SOP1: Assigning PTAB Panels was mistaken and has back been replaced with the branch alpha with SOP1 additionally requires…)

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