PTO Panel Stacking: Unblessed by the Federal Circuit and Likely Unlawful

34 Pages Posted: 7 Oct 2019 Last revised: 13 May 2020

See all articles by John M. Golden

John M. Golden

University of Texas at Austin - School of Law

Date Written: September 1, 2019

Abstract

In recent years, the United States Patent and Trademark Office (“PTO”) sought to control results in adjudication by its Patent Trial and Appeals Board (“PTAB”) through a process commonly described as “panel stacking.” In a “strong form” of this practice, the PTO Director or Director’s delegee generated a new panel of administrative judges to conduct rehearing proceedings after an initial panel produced a decision with which the Director or delegee disagreed. This Essay contends that this strong-form practice raises constitutional concerns under the Fifth Amendment’s Due Process Clause. Consequently, the doctrine of constitutional avoidance instructs that courts should understand the Patent Act to preclude strong-form panel stacking. Judges and commentators have repeatedly erred by citing a plurality opinion on panel stacking in In re Alappat as if the plurality opinion authoritatively held that the Patent Act authorizes panel stacking. This Essay seeks to correct that misconception and shows that, once one takes account of constitutional concerns, the Alappat judges’ recognition of statutory ambiguity effectively condemns strong-form panel stacking, rather than “blessing” it.

Keywords: due process, impartiality, bias, constitutional avoidance, PTAB, panel stacking, Alappat

Suggested Citation

Golden, John M., PTO Panel Stacking: Unblessed by the Federal Circuit and Likely Unlawful (September 1, 2019). 104 Iowa L. Rev. 2447 (2019), U of Texas Law, Public Law Research Paper 706 , Available at SSRN: https://ssrn.com/abstract=3460271 or http://dx.doi.org/10.2139/ssrn.3460271

John M. Golden (Contact Author)

University of Texas at Austin - School of Law ( email )

School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

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