Introduction to the Patent Trial and Appeal Board

By David P. Ruschke and Christopher M. Kaiser

Published in Landslide Vol. 11 No.2, ©2018 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.

This article is authored by an employee of the USPTO; no copyright is claimed by the United States in this article or associated materials.

In 2011, Congress created a new administrative body in the United States Patent and Trademark Office (USPTO) called the Patent Trial and Appeal Board (PTAB), giving it the powers and duties of the existing Board of Patent Appeals and Interferences (BPAI), as well as the authority to hear and decide several types of newly created post-grant challenges to issued patent claims. In the years since it was formed, the PTAB has simultaneously continued the work of its predecessor organization, deciding thousands of appeals each year from the decisions of patent examiners, and become one of the most active patent law forums in the nation through its handling of the new post-grant proceedings. This first in a planned series of articles introduces the PTAB and what it does. This article focuses on the formation, structure, and activities of the PTAB. It discusses the processes the PTAB uses to arrive at its decisions, and introduces a taxonomy of PTAB decisions that provides a useful frame of reference for deeper discussion and understanding of the PTAB.

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