Commentary: Authority of the Commissioner Over the Board of Patent Appeals and Interferences

Abstract

On August 3, 1992, the United States Patent and Trademark Office published a notice in the Federal Register requesting public comments on the PTO's appeal procedures. Taken in context, then, the notice can be fairly said to raise the issue whether, under the existing statute, the Board is subservient to the Commissioner. It also raises the broader question of whether such a subservient arrangement is desirable or, alternatively, whether the statute should be modified if necessary to give the Board decisional independence from the Commissioner. This Commentary is directed primarily to this latter point. In summary, it concludes that the Commissioner, and not the Board, is inherently better suited to determine policy in the patent area. Whatever administrative lawmaking authority exists in the patent area should therefore reside in the Commissioner. Given this conclusion, there is little or nothing to gain from placing the adjudicatory powers of the Board outside the Commissioner's supervision. Indeed, such a change would likely have negative effects. The most appropriate course is therefore to continue the Board's present subservience to the Commissioner.

Keywords: PTO, patents, decisional independence, Ex parte Alappat, Ex parte Akamatsu