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On May 26, 2022, the USPTO announced its interim process for PTAB decision circulation and internal PTAB review in hopes of further promoting “consistent, clear, and open decision-making.” This interim process models the Federal Circuit’s ten-day circulation process for precedential decisions and the previous Senior Technical Assistant’s circulation process.
Under the new interim process, before the PTAB panel issues a decision, certain sections of a draft decision are circulated amongst at least eight non-management PTAB judges. The USPTO coins this group of PTAB judges the “Circulation Judge Pool” (“CJP”) and considers the CJP to be wholly representative of the PTAB. Although a draft decision is circulated amongst the entire CJP, the interim process only requires that at least two CJP judges review the draft decision.
Following this review, the CJP will alert the PTAB panel of potential conflicts or inconsistencies with relevant authority (including at least applicable statutes, binding case law, and USPTO policy), identify potential inconsistencies with other PTAB decisions, and will offer additional stylistic edits as deemed necessary. Ultimately, the panel has the final authority to decide the content of a decision and unlike the Federal Circuit’s circulation process, the CJP does not have the power to hold a decision. As such, it remains in the PTAB panel’s discretion how to incorporate the CJP’s feedback. The Director is not involved in directing or otherwise influencing any panel decision prior to its issuance. Nor is the Director involved in the paneling for any PTAB proceeding. The Director only has oversight over rules, policies, and procedures.
Whereas the previous process for PTAB decision circulation and internal review required at least one member of PTAB management—at the direction of/in consultation with the Director—to review decisions for potential inconsistencies with relevant authority, the new process stipulates that a panel member may (but is not required to) consult with PTAB management for non-binding feedback if he or she desires. As such, the interim process aims to increase transparency of the panel’s decision-making process and ease fears that the Director is improperly influencing such decisions.
This push for transparency and eliminating the Director’s role pre-issuance follows the SCOTUS’ decision nearly a year ago in United States v. Arthrex, Inc. that the Director may review all decisions of the PTAB panel and, upon review, may issue her own decisions on the PTAB’s behalf.
