View source for Patent Trial and Appeal Board

{{Distinguish|text = [[Patent Appeal Board]], the equivalent body in Canada}}
{{United States patent law}}
The '''Patent Trial and Appeal Board''' ('''PTAB''') is an [[Article I and Article III tribunals|administrative law body]] of the [[United States Patent and Trademark Office]] (USPTO) which decides issues of [[patentability]]. It was formed on September 16, 2012, as one part of the [[America Invents Act]].  Prior to its formation, the main judicial body in the USPTO was the [[Board of Patent Appeals and Interferences]] (BPAI).

==Structure==
The PTAB is primarily made up of an Appeals Division and a Trial Division. The Appeals Division, with over 100 [[Administrative law judge|Administrative Patent Judges]], handles appeals of [[patent examiner]] rejections, with sections adjudicating different technology areas.<ref>{{cite web|url=http://www.uspto.gov/ip/boards/bpai/ptab_appeals.jsp|title=Appeals (Patent Trial and Appeal Board)|website=United States Patent and Trademark Office|accessdate=4 December 2014}}</ref> The Trial Division, handles contested cases such as [[Inter Partes Review]], Post Grant Review, Transitional Program for Covered Business Method Patents, and Derivation Proceedings.<ref>{{cite web|url=http://www.uspto.gov/ip/boards/bpai/ptab_trials.jsp|title=Trials (Patent Trial and Appeal Board)|website=United States Patent and Trademark Office}}</ref>

The PTAB is headed by a Chief Administrative Patent Judge, currently Scott R. Boalick.<ref>[http://www.uspto.gov/web/offices/dcom/bpai/index.html Board of Patent Appeals and Interferences]</ref>

==Procedures==
An applicant can [[appeal]] the examiner's decision to the PTAB. The appeal procedure is described in section 1200 of the U.S. [[Manual of Patent Examining Procedure]] (MPEP).<ref>USPTO, [http://www.uspto.gov/web/offices/pac/mpep/mpep_e8r3_1200.pdf ''Chapter 1200 Appeal''], Manual of Patent Examining Procedure.</ref>

Typically, appeals to the PTAB are conducted ''[[ex parte]]''. Decisions of the PTAB are typically rendered as an [[Legal opinion|opinion]].

==Appeals==
Decisions of the PTAB can be further appealed to the [[United States Court of Appeals for the Federal Circuit]] (CAFC) under {{UnitedStatesCode|35|141(a)}}.  The decisions of the CAFC may also be reviewed on a [[Procedures of the Supreme Court of the United States|discretionary basis]] by the [[United States Supreme Court]] as was firmly established in 1996 in [[Brenner v. Manson]]. Under United States v. Arthrex, Inc., the USPTO Director also has authority to review decisions of the Board and even issue decisions in its name.

An alternative path is a civil action against the [[Under Secretary of Commerce for Intellectual Property|Director of the United States Patent and Trademark Office]] in the [[U.S. District Court for the Eastern District of Virginia]] under {{UnitedStatesCode|35|145}}. Any appeal arising from such a case would then be directed to the CAFC under {{UnitedStatesCode|28|1295}}.

The [[United States Congress]], however, can change the patent laws, and thus override a precedential decision of the Supreme Court, but only for future cases and not retrospectively.

==Constitutionality==
In 2007, [[John F. Duffy|Professor John F. Duffy]], a [[patent law|law]] professor, argued that, since 2000, the process of appointing judges to the BPAI (the PTAB's predecessor court) has been unconstitutional, because the judges were appointed by the Director of the U.S. Patent and Trademark Office rather than by the Secretary of Commerce (a "Head of Department" under the Appointments clause of the Constitution).<ref>John F. Duffy, [http://www.patentlyo.com/lawjournal/2007/07/are-administrat.html ''Are Administrative Patent Judges Unconstitutional?''], 2007, Patently-O Patent L.J. 21, or Duffy, John F., "Are Administrative Patent Judges Unconstitutional?" . Available at [http://ssrn.com/abstract=1128311 ssrn.com]</ref>  This problem has since been rectified and current Administrative Patent Judges are appointed by the Secretary of Commerce.

Starting in 2014, parties challenged the constitutionality of the PTAB to review and cancel patent claims under the [[Seventh Amendment to the United States Constitution|Seventh Amendment]] and separation of powers doctrines.<ref name="Law360">{{cite web|title=The Road To Oil States: How AIA Reviews Got To The Justices |url=https://www.law360.com/articles/942800/the-road-to-oil-states-how-aia-reviews-got-to-the-justices|website=Law360|accessdate=13 September 2017}}</ref> The Supreme Court decided in the 2018 [[Oil States Energy Services, LLC v. Greene’s Energy Group, LLC|Oil States case]] that this function of the PTAB was constitutional.<ref name="US Supreme Court">{{cite web|title=OIL STATES ENERGY SERVICES, LLC, PETITIONER v. GREENE’S ENERGY GROUP, LLC, ET AL. |url=https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf|website=supremecourt.gov|accessdate=12 May 2018}}</ref>

===Claim construction standards===
In January 2016, the United States Supreme Court agreed to hear a challenge to the legitimacy of the patent standards used in the Patent Trial and Appeal Board during inter partes review.<ref>{{cite web|title=Docket sheet summarizing Supreme Court case.|url=https://www.docketalarm.com/cases/Supreme_Court/15-446/Cuozzo_Speed_Technologies_LLC_Petitioner_v._Michelle_K._Lee_Under_Secretary_of_Commerce_for_Intellectual_Property_and_Director_Patent_and_Trademark_Office/|publisher=Docket Alarm|accessdate=20 January 2016}}</ref><ref>{{Cite news|url=http://www.scotusblog.com/case-files/cases/cuozzo-speed-technologies-llc-v-lee/|title=Cuozzo Speed Technologies, LLC v. Lee - SCOTUSblog|work=SCOTUSblog|access-date=2018-08-13|language=en-US}}</ref> In the case, Petitioner Cuozzo Speed Technologies, LLC, argued that the PTAB's use of the "Broadest Reasonable Construction" (BRI) claim construction standard exceeded their authority, and that Congress had legislated that they follow the "Phillips" claim construction standard used in other U.S. Courts.
<ref>{{cite web|title=Cuozzo Opening Petition to the U.S. Supreme Court|url=https://www.docketalarm.com/cases/Supreme_Court/15-446/Cuozzo_Speed_Technologies_LLC_Petitioner_v._Michelle_K._Lee_Under_Secretary_of_Commerce_for_Intellectual_Property_and_Director_Patent_and_Trademark_Office/10-06-2015-Petition_for_a_writ_of_certiorari_filed/|publisher=Docket Alarm|accessdate=20 January 2016}}</ref> On June 20, 2016, the Supreme Court issued their opinion, upholding the PTAB's BRI claim construction standard.<ref>{{cite web|title=Cuozzo Speed Technologies, LLC, Petitioner v. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, 15-446, Adjudged to be AFFIRMED Breyer J (U.S. Jun. 20, 2016)|url=https://www.docketalarm.com/cases/Supreme_Court/15-446/Cuozzo_Speed_Technologies_LLC_Petitioner_v._Michelle_K._Lee_Under_Secretary_of_Commerce_for_Intellectual_Property_and_Director_Patent_and_Trademark_Office/06-20-2016-Adjudged_to_be_AFFIRMED_Breyer_J/|accessdate=23 November 2016}}</ref> In response, in May 2018, the USPTO proposed adopting the Phillips claim construction.<ref>{{Cite news|url=https://www.natlawreview.com/article/uspto-proposes-claim-construction-rule-change-bri-to-philips-aia-review-proceedings|title=USPTO Proposes Claim Construction Rule Change from BRI to Philips in AIA Review Proceedings|work=The National Law Review|access-date=2018-08-13|language=en}}</ref>

===Principal Officers versus Inferior Officers===
{{main|United States v. Arthrex, Inc.}}
On October 31, 2019, a three judge panel of the [[United States Court of Appeals for the Federal Circuit]] held that the administrative patent judges (APJs) were Principal [[Officer of the United States|Officers of the United States]] due to the construction of the statute creating their offices. The panel further held that the members of the Board were unconstitutionally appointed under the [[Appointments Clause]], which would require appointment through the President and confirmation by the Senate. They rectified the situation by severing the portion of the statute that restricted removal of the members of the Board, thus rendering them Inferior Officers of the United States.<ref>{{cite web |url=http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-2140.Opinion.10-31-2019.pdf |title=Arthrex, Inc. v. Smith & Nephew, Inc. |last=Moore |first=Kimberly Ann |author-link=Kimberly Ann Moore |date=October 31, 2019 |website=www.cafc.uscourts.gov |publisher=United States Court of Appeals for the Federal Circuit |access-date=November 4, 2019}}</ref>

Upon appeal, the [[Supreme Court of the United States]] issued its decision on June 21, 2021, that affirmed that APJs were considered principal officers with "unreviewable authority", and thus had been appointed unconstitutionally. However, to remedy the matter, the Court made it so that all decisions made by the PATB were subject to review by the Director of the Patent Office, who was an appointed position.<ref name="nytimes">{{cite web | url = https://www.nytimes.com/2021/06/21/us/politics/supreme-court-patent-judges.html | title = Supreme Court Says Over 200 Patent Judges Were Improperly Appointed | first = Adam | last = Liptak | authorlink=Adam Liptak | date = June 21, 2021 | access-date = June 21, 2021 | work = The New York Times }}</ref>

== See also ==
* [[Appeal procedure before the European Patent Office]]
* [[Trademark Trial and Appeal Board]] (TTAB)

== References ==
{{reflist}}

== External links ==
* {{official website|2=Patent Trial and Appeal Board (PTAB)}} on the USPTO web site

{{Authority control}}

[[Category:United States patent law]]
[[Category:Article I tribunals]]
[[Category:United States Patent and Trademark Office]]
[[Category:2012 establishments in the United States]]
[[Category:Courts and tribunals established in 2012]]