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January 03, 2018


The statement of "Article I courts, and the PTAB in particular, have another legitimate goal: providing consistent application of the law to applicants and, in the case of implementing the adversarial avenues the AIA created, developing a consistent body of procedural and substantive law."

is a FAR too generous statement, lacking evidence.

THAT may be a "legitimate goal," but the legitimacy OF the goal does not in fact make it a goal of the PTAB.

As to "consistent body," there is a kernel of truth there, but that consistency is NOT to "application of law" but rather that consistency is to "the political agenda of a political administrative agency."

As noted elsewhere, there exists a spectrum of "separateness" among administrative agency bodies that hold both executive and judicial functions, and the USPTO is one of the lowest ranked agencies for that separateness.

The AIA SHOULD HAVE known better.
At least my representatives were told so (by me).

This is a fishing expedition discovery request [normally denied in IPRs] and it is irreverent to the subject issue. This is a pure legal issue of first impression that will have to be decided by the Fed. Cir., irrespective of any initial PTAB decision, and it would be that Fed. Cir. decision being attempted to be appealed to the Sup. Ct., not the PTAB decision.

Yes, Paul, I intended the readers to understand that “ultimately “ it would go to the Supreme Court without needed to be needlessly explicit.

And I think the point is, fishing expedition or not, the request is extraordinary and is both indicative of and responsive to the conflict between the kind of impartiality required of courts and the need for an administrative agency to have a consistent and predictable application of its regulations under the law. I think this is very different in kind from the types of discovery motions made in IPRs

P.S. On such a pure legal issue of first impression the PTO and PTAB are clearly and logically entitled to provide internal guidance so that different PTAB panels do not give inconsistent decisions until the Fed. Cir. provides controlling authority.
Thus, if this is intended to create another vehicle for another Constitutional attack on IPRs. it is the wrong vehicle.
Also, it would inherently challenge ALL PTAB decisions on that basis, not just IPRs.

Which was one of the points of the post. But the optics are terrible. And maybe it sp aks to there being a better option: public notice and rule making under the APA, with the rule being the vehicle for the legal challenge to the CAFC

That sound clip of the solicitor admitting that PTAB panels are rigged is astounding.

Atari Man,

The power to reset IS a normal power of the Director - and has been for as long as I can remember. The Judge here has just not looked far enough (limiting himself to looking merely at the AIA).

This is structural power of that particular administrative agency.

As noted in my comment above, that particular administrative agency has one of the very worst political/judicial segregations out of all administrative agencies.

This too, has been known for as far back as I can remember.

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