The Federal Circuit over the next year is going to be deciding a
lot of fundamental procedural issues on the treatment of appeals
from final written decisions of the Patent Trial and Appeal Board.
The process of that review raises novel questions.
The judges at the Patent Trial and Appeal Board are looking for
guidance. They understand that the federal circuit is the boss. In
other words, the circuit is going to review all PTAB decisions,
especially procedural issues, evidentiary issues and discovery
issues.
The Patent Trial and Appeal Board is organized in a way that
creates a consensus analysis among the judges – a sort of
collective wisdom about what's going on the federal circuit.
And that consistency among the PTAB judges is important from a
substantive perspective as well.
One of the bases on which an attorney can challenge an
administrative agency's action is to demonstrate that
adjudication in particular cases is inconsistent with what that
agency has done in other similar circumstances. There is an
increased likelihood that there will be a much greater instance of
parties citing what the PTAB has done in other similar cases as
evidence of inconsistency. The question is whether the federal
circuit treats PTAB decisions in a manner consistent with the way
in which the courts of appeals treat other agencies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
