The PTAB Bar Association held its first conference in Washington DC March 1-3, 2017 with more than 400 attendees and a wait list of interested individuals. PTAB Chief Judge David Ruschke gave the keynote address.
Chief Judge Ruschke began by acknowledging why we are now at a point where there is an interest in having a PTAB Bar Association. Specifically, he noted that the PTAB has become a vital component of the patent system. We have seen that reflected in an incredible rise in appeals to the Federal Circuit from the PTAB and also that post-grant proceedings are now an important tool for every patent litigator.
His focus has been on stabilizing the organizational structure of the PTAB. There has not been any hiring of judges except as a result of attrition in the last year. Under his direction, the PTAB has vice chief judges to help run the office.
Chief Judge Ruschke then discussed ex parte appeals, which make up two thirds of the work of the PTAB. He considers this the bread and butter of the PTAB. Two thirds of the APJs spend virtually all of their time deciding ex parte appeals. The PTAB’s goal is to get to a 12-month pendency for ex parte appeals. At the moment, pendency is about two years, depending on technology center in which the appeal arises.
Chief Judge Ruschke acknowledged that there is a lot to discuss when it comes to the AIA trials. It is a fairly new proceeding. The PTAB therefore wants to have a two-way dialogue with the stakeholders. Chief Judge Ruscke challenged, however, anyone who raises a complaint or issue to provide the PTAB with data – including IPR numbers and specifics.
The Chief Judge then presented a new slide to address AIA trial data on a per patent basis (pictured below). This data includes pending proceedings, in contrast to the past data that did not include such proceedings. Currently, approximately two-thirds of petitions are instituted. Settlements are also tracked in this slide. Approximately 25-30% of petitions settle at some point in the proceeding.
What is happening at the PTAB right now? The new Secretary of Commerce was just confirmed by the Senate on February 27, 2017— just days before Chief Judge Ruschke’s remarks. Chief Judge Ruschke acknowledged that the office realizes there is still a lot of work to be done. They hear on a daily basis that they need to look at motions to amend. They know they need to look at multiple filings against a single patent. Do they provide sufficient due process? Do they provide sufficient explanation in decisions? Consistency with 275 judges is, of course, a challenge. They are also very well aware of the interplay with district court and are happy that they have met the one-year statutory deadline to give certainty to the courts.
Finally, the Chief Judge closed with a plug for PGRs. They are near and dear to his heart. He finds them to be akin to European oppositions. The statutory deadline gives a significant advantage over European proceedings, but he believes that the U.S. needs to have the best post-grant proceedings in the world. The statutory framework is in place. The best judges are in place. Unfortunately, it hasn’t taken off yet. But in the future he expects that we will have sessions dedicated just to PGR.
Overall, the keynote address set an optimistic and forward-looking tone for the conference while also acknowledging how far we have come since the initial implementation of the AIA.