Board of Patent Appeals and Interferences

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The Board of Patent Appeals and Interferences (BPAI) is an administrative law body of the United States Patent and Trademark Office (USPTO), which decides issues of patentability. The Chief Administrative Patent Judge is Michael R. Fleming.[1]

Contents

[edit] Composition

The BPAI is comprised primarily of an Appeals Division and a Trial Division. The Appeals Division, with 69 Administrative Patent Judges, handles appeals of patent examiner rejections, with sections handling different technology areas. The Trial Division, with 11 Administrative Patent Judges, handles cases that are either contested or interference proceedings.[2] The BPAI is headed by a Chief Administrative Patent Judge, currently Michael R. Fleming, with a Vice Chief, currently James T. Moore. [3]

[edit] Procedures

If an applicant for an invention cannot convince a patent examiner that they are entitled to their claims, then the applicant can appeal the examiner's decision to the BPAI. The procedure for appealing an examiner's decision to the board of appeals is described in section 1200 of the U.S. Manual of Patent Examining Procedure (MPEP). [4] Typically, appeals to the BPAI are conducted ex parte. Decisions of the BPAI are typically rendered as an opinion.

[edit] Appeals

Decisions of the BPAI can be further appealed to the United States Court of Appeals for the Federal Circuit (CAFC) under 35 U.S.C. § 141. The decisions of the CAFC may also be reviewed on a discretionary basis by the United States Supreme Court. The U.S. Supreme Court is the ultimate authority on the judicial standards for patentability.

The United States Congress, however, can change the patent laws and thus override a decision of the Supreme Court.

An alternative path is a civil action against the Commissioner of Patents and Trademarks in the U.S. District Court for the District of Columbia under 35 U.S.C. § 145. Any appeal arising from such a case would then be directed to the CAFC under 28 U.S.C. § 1295.

[edit] Constitutionality

In 2007, Professor John F. Duffy, a widely recognized patent law scholar, made the claim that, since 2000, the appointment process of BPAI Judges has been unconstitutional. This stems from the fact that the BPAI Judges are appointed without approval by the U.S. Senate.[5]

[edit] References

  1. ^ Board of Patent Appeals and Interferences
  2. ^ Board of Patent Appeals and Interferences Organization Chart
  3. ^ Board of Patent Appeals and Interferences
  4. ^ USPTO, Chapter 1200 Appeal, Manual of Patent Examining Procedure.
  5. ^ John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007, Patently-O Patent L.J. 21, or Duffy, John F., "Are Administrative Patent Judges Unconstitutional?" . Available at SSRN: http://ssrn.com/abstract=1128311.

[edit] See also

[edit] External links

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