The PTAB Bar Association has a committee called “PTAB Appeals” that scheduled a meeting on April 5, 2018 to discuss various topics with sitting judges at the PTAB. This meeting was set up in part because of interest in Chief Judge Ruschke to meet with practitioners to discuss ex parte appeals. Ex parte appeals is the less-discussed and less-focused on aspect of what PTAB does. The two-hour meeting was at the USPTO in Alexandria, VA and covered a lot of ground including Section 101.
At this meeting, Chief Judge Ruschke was optimistic about newly appointed director Andrew Iancu. According to Ruschke, Iancu has stressed that the USPTO has to do a better job of applying Section 101 in a more consistent, straightforward manner. And Iancu sees the corpus of decisions coming out of the PTAB as an important clue to this.
During the meeting, there was talk about how Examiners at the USPTO largely are not good at applying case law. And part of the challenge of overcoming Section 101 rejections is having the Examiners understand the legal arguments. But the Board comprises judges who are legally trained to entertain and apply case law. And as the judges are overturning Examiners’ 101 rejections, this becomes an additional way for Section 101 jurisprudence to develop (in addition to the federal court decisions). Because there are so many more decisions at the PTAB across more diverse technology centers, the PTAB seems to be an ideal forum for understanding the boundaries of patent-eligibility.
Anticipat.com is committed to tracking all the facets of decisions coming out of the ex parte PTAB. Stay tuned for continued developments as it relates to Section 101 among other areas.