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March 12, 2018


"PTAB has no implied authority to create ad hoc rules and new forms of PTAB standing to facilitate what it perceives to be its mission."

If this case makes it as far as SCOTUS, that line of argument will strike a chord with Justice Gorsuch.

The wise course for PTAB right now would be to latch on to 37 C.F.R. § 42.5(a) and take no further action until the sovereign immunity issue is settled. The more interesting course will be if it doesn't.

In an interesting game of "chicken," what exactly would the American Indian tribe lose?

Would any sanction compare to the "already on the table" decision by the PTAB to move forward regardless of the Tribe's immunity request?

I believe that the Tribe calling the bluff of the PTAB can only make the PTAB look worse. Let's not forget, Oil States is still sitting there in front of the Supreme Court, and any type of "bully" posture by the PTAB can easily be seen as an administrative agency acting out of control.

If an impartial outside observer can't already see that the PTAB is out of control, they aren't paying attention.

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