U.S. watchdog says pressure from patent officials affected agency rulings
Blake Brittain July 21, 20224:11 PM EDTLast Updated a day ago
(Reuters) – U.S. Patent and Trademark Office administrators improperly influenced decisions by the office’s patent-eligibility tribunal for years, the U.S. Government Accountability Office said in a preliminary report released Thursday.
The report said two-thirds of judges on the PTO’s Patent Trial and Appeal Board felt pressure from higher-ups at the office to change aspects of their decisions, and that three-quarters of them believed the oversight affected their independence.
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While the report said management “rarely” influenced decisions on whether to cancel a patent, it said it did affect judges’ rulings on questions like whether to review a patent.
A PTO spokesperson said the report “reflects GAO’s preliminary observations on past practices,” and that current director Kathi Vidal has “prioritized providing clear guidance to the PTAB regarding the director review process” since taking office in April.
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The U.S. Supreme Court decided last year that the PTO director should be able to review board decisions.
The PTAB allows parties to challenge the validity of patents based on preexisting inventions in “inter partes review” proceedings.
A committee of volunteer judges began peer reviewing decisions in such cases for style and policy consistency and flagging them for potential management review in 2013, the report said. PTAB management began informally pre-reviewing board decisions on important issues and offering suggestions in 2017, and management review became official PTO policy in 2019.
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Some PTAB judges said their decisions had been affected by fears of negative career consequences for going against the suggestions. One judge said in the report that the review policy’s “very existence creates a preemptive chilling effect,” and that management’s wishes were “at least a factor in all panel deliberations” and “sometimes the dominant factor.”
The report said the internal review policies were not made public until May.
Republican Congressman Darrell Issa of California said during a U.S. House of Representatives subcommittee hearing Thursday that the report of officials influencing PTAB decisions “behind closed doors” was “disturbing.”
Andrei Iancu was appointed PTO director by former President Donald Trump and took charge of the office in 2018. Iancu, now a partner at Irell & Manella, had no comment on the report.
Issa, the subcommittee’s ranking member, and its chairman, Democratic Congressman Hank Johnson of Georgia, called on the GAO last year to investigate the PTO director’s potential influence on PTAB cases.
(NOTE: This story has been updated with comment from the U.S. Patent and Trademark Office.)
Read more:
U.S. Supreme Court reins in power of patent tribunal judges
U.S. Senators Leahy, Tillis introduce bill to revamp patent review board
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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com
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PWS
07-22-22