Report indicates that PTAB judges will soon be required to return to in-person work
“Requiring PTAB judges to go back to the office (including for many who are nowhere near a USPTO office and who would have to relocate their entire families) threatens the PTAB’s critical role.” – Kathi Vidal
According to Bloomberg Law, the administrative patent judges (APJs) of the U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB) will be asked to return to the office as soon as February 24–a move which former USPTO Director Kathi Vidal said would make the PTAB inefficient and unable to keep up with its current timelines for decisions.
The information was reportedly relayed by Chief APJ Scott Boalick on a USPTO call with the APJs yesterday. The USPTO did not confirm the report and said it had no comment in response to a request by IPWatchdog on Wednesday.
Donald Trump mandated via a January 20 Executive Order that federal government employees come back to the Office five days per week, something that would be virtually impossible for the USPTO overall, which has remote workers all over the country. The Office started its telework program back in 1997. By 2023, almost 13,000 of USPTO’s 14,000 employees would be working remotely. In an email posted on LinkedIn, Kathy Duda of the Patent Office Professional Association said that the collective bargaining (CBA) POPA had with USPTO Management exempted POPA members. The memo says it doesn’t apply to the patent office but there does seem to be this push
.” The memo says it doesn’t apply to the patent office but there does seem to be this push [f].”
The Commerce memo also seemed skeptical of CBAs that exempt employees from the Order, stating: “In collaboration with Department leadership, bureaus with employees covered by collective bargaining agreements addressing telework and remote work should continue to explore methods for maximizing in-person work.”[Supervisory Patent Examiners]At PTAB Masters, Quinn questioned whether PTAB judges would just quit if they had to return to the Office and asked the panel how that would affect the disposition of inter partes reviews (IPRs). Paul Michel, retired Chief Judge of the U.S. Court of Appeals of the Federal Circuit, responded that if judges quit en bulk, the PTAB will need to focus its attention on the “front-end” to reduce its workload. This would include using its discretion to only hear the most important cases. Michel said that while it’s “admirable” that the Board met the AIA deadline so far, if a large number of judges quit, that would be a problem. She explained:[for staff to return to the office]”Because of the ability to work remotely, the PTAB has been able to attract highly skilled, passionate, and dedicated judges and personnel. The PTAB’s crucial role is threatened by requiring PTAB judges (including those who live far from a USPTO and would have to relocate with their families) to return to the office. It will either force the PTAB, which was created to deal with patent challenges, to deny them more discretionary decisions or force the PTAB use the extra six months to make decisions. This will reduce the PTAB’s ability to effectively address validity challenges. I would encourage anyone with a stake to speak out. While I was the Director, we would regularly receive input directly or through communications with the administration including with the Secretary of Commerce, and often written by CEO’s or industry groups.”
Former USPTO Commissioner for Patents Bob Stoll also told IPWatchdog that the return to office order is causing “havoc”. Stoll said that the blanket orders to return to work without understanding the roles and responsibilities of judges, the needs of an organization, or the disruptions to peoples’ lives is causing unnecessary havoc. The Upside
But Gene Quinn said, “it makes perfect sense that the Department of Commerce requires APJs to come back to work”, since they are not covered under the CBA. Quinn said that the policy will not have a wide-ranging effect, and in any case it may be time to “reset” the PTAB. Quinn explained:
“While some will no doubt blow this out of proportion, there are only approximately 250 APJs currently, maybe even less. Quinn explained:
“While some will no doubt blow this out of proportion, there are only approximately 250 APJs currently, maybe even less. Former APJs are in high demand. Former APJs tend to be in high demand. The USPTO had predicted that 400 to 500 inter-partes patent challenges would be filed each year at the time of the PTAB’s inception. The number of challenges filed each year is three to four time higher than what was predicted. This is due to a number of factors, including the ease with which patents can be invalidated at the PTAB. It is easy to predict that if the PTAB loses a significant number of APJs and with a statue that requires cases be completed preferably within twelve months, but no later than 18 months, a smaller PTAB will need to be more discerning in what challenges it institutes. This was always the intention of the creators of PTAB, in Congress, as well as the Kappos Administration, who implemented the intent. It does not strike me as a disaster if the PTAB returns to what it was intended to be. It is precisely what was intended before the PTAB grew beyond anything anyone ever envisioned.
And, let’s face it, the PTAB was created to get rid of ‘bad patents.’ Given the incentives and purpose of this entirely new bureaucracy does it really shock anyone that they see bad patents everywhere all the time? The PTAB has never been able to achieve the stated goal of eliminating ‘bad’ patents, despite claiming to have a high-quality examiner and a low error rate. There’s something not quite right and there should probably be a reset.” After Lutnick takes office, it is likely that a nominee will be announced for a permanent USPTO director. The Office will need stable leadership to promulgate new rules, guidance and policies for the many changes that seem likely in the near future.
Image Source: Deposit Photos
Author:
Image ID: 391071438
This article was updated after publication to include Bob Stoll’s comments.
Eileen McDermott
Eileen McDermott, Editor-in Chief of IPWatchdog.com is a veteran IP and legal journalist. Eileen McDermott is a veteran IP journalist and has held editorial and management positions at
.
