PTAB Masters Panelists urge the patent community to stay focused on what we can control
“Kappos said that he agreed with the Commerce memo [on returning to work] and ‘hopefully this will hold. The panelists used the word “chaotic” but provided a roadmap for what the patent community should focus on amid all the noise. While the word “chaotic” was used, the panelists provided a roadmap for what the patent community should stay focused on amid all the noise.
Former U.S. Patent and Trademark Office (USPTO) Director David Kappos, for instance, said that “in times when things get chaotic, it’s important to have a good compass,” and urged attendees to pay attention to things that are not going to change, like the need for the Office to retain its fees, ways to tackle the sizeable backlog of applications, and the reforms contemplated by the three patent bills that will likely be reintroduced this congress (the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL Act); the Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive Patent Rights Act (RESTORE Act); and the “Patent Eligibility Restoration Act” (PERA)).
Kappos noted that this administration includes leadership that is more directly familiar with patents than any he can remember in the past. Howard Lutnick is a prolific patent litigator and inventor. He’s also the nominee for Secretary Commerce. Coke Morgan Stewart is the Acting USPTO director. She has worked for the agency in a variety roles for a decade and was also a member of the IP and Technology Group at O’Melveny & Myers LLP. Israel said that if the administration was to support one or more of these bills in a substantive way, it could change the situation. The panelists also discussed the recent Trump Executive Order “Return To In-Person Work”, which the Commerce Department stated in a Friday memo does not apply to USPTO. The head of the Patent Office Professional Association (POPA), Kathy Duda, also said in an email that was posted to LinkedIn Friday that the collective bargaining agreement (CBA) POPA has with USPTO management exempts POPA members.
There remains some confusion, however, since both memos refer to exemptions for those covered by CBAs, which the PTAB judges and certain other USPTO staff are not. IPWatchdog CEO Gene Quinn said that “examiners appear to be safe,” but “that leaves the PTAB Judges and
Staff a little in limbo.” The memo says it doesn’t apply to the patent office but there does seem to be this push
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Michel said that the PTAB would need to focus on the “front end” in order to reduce its workload, namely, using its discretion to hear only the most important cases. The PTAB has already seen more cases than predicted by the AIA. While it’s “admirable” that the Board met the deadline, if a large number of judges quit, that’s going be a problem, Michel said. It appears to help the entire PTO, but how long it will benefit the PTAB is yet to be determined. The USPTO is not exempted from that as far as anyone knows, and since the solution to the backlog starts with hiring examiners, “it’s really going to struggle” if it cannot hire for an extended period of time.
