Two Views of PTAB: Past, Present, and Future

Michael R. Fleming

©2017. Published in Landslide, Vol. 9, No. 3, January/February 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Recently, the United States Patent and Trademark Office’s (USPTO’s) administrative patent tribunal, now named the Patent Trial and Appeal Board (PTAB), celebrated its 155th anniversary. Over the years, the PTAB has changed from six examiner-in-chiefs in the 1800s to more than 230 administrative patent judges (APJs). Because of this large influx of new APJs, the PTAB has changed operationally. Instead of being located in one geographic location, APJs today are working remotely in various locations in the United States. Instead of hard copies, PTAB papers and documents are electronic. Moreover, the role of the PTAB has expanded greatly from just handling ex parte appeals from examiner’s final patentability decisions to full administrative trials determining patent validity, thereby playing a prominent role in patent litigation. Due to these changes, the PTAB is faced with a myriad of challenges.

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