The Board of Patent Appeals and Interferences (“BPAI”) is the body within the Patent and Trademark Office that hears appeals. If a patent application is rejected twice by an examiner, the applicant can appeal to the BPAI and ask that the examiner’s decision be reversed. If the applicant is not happy with the decision of the BPAI, the applicant can appeal the BPAI’s decision to the Federal Circuit Court of Appeals.
The PTO has raised the profile of the BPAI in recent years and has rejected many patent applications, resulting in a substantial increase in appeals to the BPAI. By statute, BPAI appeals are decided by panels of three judges. The BPAI judges operate under a ‘count’ system, like patent examiners, under which the BPAI judge is expected participate in about 300 panels per year and to author about 100 decisions per year. Under recent changes in BPAI procedure, the BPAI judge is not given credit for writing concurring or dissenting opinions. The BPAI also has implemented a program where opinions are authored by new patent attorneys and signed by the BPAI judges. For judges who use the patent attorneys, the count requirements are much higher. The steady drumbeat at the BPAI is to do more with less – to hear more appeals in less time and with fewer resources. A decrease in the quality of the decisions will be the inevitable result.
–Robert J. Yarbrough, Esq.