GladstoneUnless the courts quickly resolve disputes, there is no justice.  As former Chief Justice Warren E. Burger said:

“A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets.”

The Board of Patent Appeals and Interferences (‘BPAI’) is denying justice to patent applicants.  The BPAI is charged with deciding appeals by patent applicants from the rejection of patent claims by the PTO.  The BPAI backlog has gone from 1000 cases in 2006, to 4000 in 2008, to 18,000 in 2010.  In early 2012 there are now 26,000 pending appealsof patent claim rejections.  Appeals currently being decided by the BPAI have been pending for about three years.  The BPAI gets further behind every day.

The effect of the increasing delay at the BPAI is to discourage patent applicants from filing appeals and to shift power to patent examiners.  If an applicant cannot obtain speedy redress, then the applicant will not appeal and patent examiners are free to make arbitrary, wrong decisions.   Of interest, when the BPAI rules, it reverses the examiner in about one case in three.

Hopefully, help is in sight. The PTO is attempting to address the BPAI backlog by doubling the number of patent judges at the BPAI.  The Department of Commerce is undertaking an audit of BPAI operations to identify ways to speed appeals.  Even with the efforts of the PTO and Department of Commerce, we can expect the BPAI backlog to linger for years.

Other changes at the BPAI include its disappearance, since it will soon be replaced by the Patent Trial and Appeal Board under section 6 of the America Invents Act.  The BPAI also has newprocedural rules.

*attributed to William E. Gladstone, 19th century British politician, whose photo appears here.

— Robert Yarbrough, Esq.