Does the Patent Trial and Appeal Board’s Precedential Opinion Panel Comport with Due Process?

By Patrick Lavery

Inter partes review is an adversarial post-grant proceeding conducted at the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office that allows third parties to petition for reexamination of patents. Normally, a panel of three administrative patent judges decides an inter partes review, but occasionally the director of the U.S. Patent and Trademark Office has expanded panels on rehearing to find against the decision of the original panel. The director has expanded panels on rehearing when the original panel found against agency policy. This practice is known as panel stacking. Parties to cases, judges, and scholars have all raised due process concerns with such panel stacking. Recently, the U.S. Patent and Trademark Office has taken a different approach to maintaining agency policy in inter partes reviews with the establishment of the Precedential Opinion Panel.

The Precedential Opinion Panel is a special panel within the Patent Trial and Appeal Board, with its default members consisting of agency leadership. Use of the Precedential Opinion Panel supplants the need for panel stacking, but it may have its own due process concerns. The main due process concerns with the Precedential Opinion Panel are the director’s position as a member of the panel and continued ability to manipulate the makeup of the panel. To alleviate the due process concerns of the Precedential Opinion Panel without getting rid of the panel entirely, this Note suggests that the director either refrain from sitting as a member of the panel, fix the makeup of the panel, or both.