Phosita IP Blog


Over the past few years, the United States Patent and Trademark Office Patent Trial and Appeal Board (PTAB) has implemented the use of expanded panels in a number of cases, causing many to question the method of selection and objective of these panels. Critics have accused the USPTO of “panel stacking,” that is, hand selecting certain Administrative Patent Judges for expanded panels to ensure the final decision is aligned with the Director’s intentions.

Perhaps in response to this criticism, the Chief Judge of the Patent Trial and Appeal Board, David Ruschke, addressed the purpose and application of expanded panels during recent Patent Public Advisory Committee meetings. He highlighted that the Chief Judge has the discretion to expand a panel when deemed necessary with respect to four specific reasons detailed in the PTAB Standard Operating Procedure 1 (SOP1). Judge Ruschke noted that the first two reasons provided were of particular importance. These reasons relate to cases involving an issue of exceptional importance, or cases where an expanded panel is necessary in order to maintain uniformity of Board decisions. In a possible attempt to ease concerns and promote transparency regarding the intent of the expanded panel, the Chief Judge said they are now providing the reason for the expansion of the panel in the opinion.

The Chief Judge also demonstrated an adherence to the SOP’s guidelines by approving an expansion in ony four cases for fiscal year 2017. The low number of cases approved for expansion follows the intent of the SOP to minimize the use of expanded panels, and closer inspection of the particular cases also reveals that the stated reasons appear to be in line with the purposes for which expansions were intended. In each of these four cases, a unanimous three-panel decision resulted in a unanimous five or seven-panel decision. These results support the Chief Judge’s contention that expanded panels are being used to emphasize the importance of the case or to show where the jurisprudence is going.The Chief Judge further implied that “panel stacking” has not been the intended use of expanded panels by emphasizing that the underlying result has only changed in two lines of cases. However, in 2015 an attorney for the USPTO made an admission during oral arguments in Yissum Research Development Co. v. Sony Corp. that acknowledged the practice of panel stacking was used, as well as expressing the belief it was legally permitted under the holding of In re Alappat. More recently, during oral arguments for Oil States Energy Service, LLC, v. Greene’s Energy Group, LLC, et al. when Chief Justice Roberts asked whether “panel stacking” comported with due process, the Deputy Solicitor General, Malcolm L. Stewart, stated that panels had been expanded in only three occasions and that he did not think it was illegal.  Many were upset that the Federal Circuit did not provide a substantive opinion regarding the practice of “panel stacking” in the Yissum case due to a Rule 36 affirmance; perhaps the Oil States opinion from the Supreme Court will offer more clarity.


DC On Film Row

About DC on Film Row

DC on Film Row is a free event space open to everyone in our community.

We like to say that the space is a “home for creatives and innovators, home builders and the homeless, celebrators and the celebrated” so people understand that we are inclusive and want everyone from throughout our community using our space.

Our goal is to celebrate the incredible diversity of creativity, innovation, and passion within Oklahoma City and to provide a venue—free of charge—to those groups and individuals working to bind us all together and make our home a cooler and better place. No strings attached—no extensive rules to follow. We simply ask that all of our neighbors be honored and that all viewpoints be respected. Our criteria for use is simple: If the event, group, or meeting is something which strengthens our community and brings us all together, the space is available for use.

The space has hosted everything from charitable fundraisers to an underground nightclub party to celebrate Canterbury Choral Society’s 45th anniversary season. We host dinners for the OKC homeless population most Monday evenings where upwards of 250 people are served—we provide the space and soft drinks and a local church provides the food. We’ve hosted university planning retreats and monthly local rock concerts.

Every Wednesday, we open up the courtyard for lunch, invite a local food truck to set up outside our gates, and welcome our downtown neighbors into the space for a bit of socialization.

Our never-ending soda fountain seems to be the biggest hit with some of our neighbors while others spend time playing pool or simply chatting about what is happening on the weekend.

For October we turn the space into a haunted house and invite the neighborhood children to come out and trick-or-treat.

Got an idea for how to use the space? Just ask us – we’re almost certain to say yes!

The Space for Ideas.

Protecting all things creative

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