Adams and Reese Partner and Patent Team Leader Ray Ferrera is interviewed in a recent Bloomberg Law article “New Patent Tribunal Rule Marks Push to Curb Political Influence.”
Reporter Annelise Gilbert discusses how the U.S. Patent Office’s recent proposed rule to eliminate senior leadership’s involvement in administrative tribunal decisions before they’re issued is the latest move in a significant effort to increase transparency after years of criticism that officials were manipulating judge panels.
“The proposal would codify interim procedures in place since last year that govern the circulation and review of decisions by judges at the Patent Trial and Appeal Board, which hears challenges to patents’ validity and appeals of patent examiners’ determinations,” writes Gilbert. “The effort builds new public guardrails around patent judges’ decisions, more clearly isolating them from the office’s politically appointed leadership after a government watchdog report and a high-profile whistleblower incident spotlighted accusations of undue influence, according to multiple patent attorneys who reviewed the rulemaking.”
Gilbert discusses further in her reporting that the new rule would bar PTO employees, including PTAB management, from being involved in panel deliberations unless a judge on the affected panel requests it. Certain categories of PTAB decisions were previously required to be circulated to a pool of non-management judges before being issued, and the PTO said it’s moving to make the process optional. The Circulation Judge Pool is intended to provide judges with guidance and information regarding potential conflicts or inconsistencies with previous decisions and other board policies and authorities. Even if a judge opts in to the pool, the proposed rules would make any feedback nonbinding.
When interviewed, Ferrera said judges would likely still opt into the pool because they don’t want to issue rulings that directly conflict with other panels. “Every time you write an opinion, that’s going to end up in a law book in some musty library till the end of time,” Ferrera said. “Nobody wants to get reversed. You want to get it right.”
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