Is the USPTO PTAB “Panel Stacking” When Using Expanded Panels?

Grant T. Gille Over the past few years, the United States Patent and Trademark Office Patent Trial and Appeal Board (PTAB) has implemented the use of expanded panels in a number of cases, causing many to question the method of selection and objective of these panels. Critics have accused the USPTO of “panel stacking,” that is, hand selecting certain Administrative Patent Judges for expanded panels to ensure the final decision is aligned with the Director’s intentions.Perhaps in response to this criticism, the Chief Judge of the Patent Trial and Appeal Board, David Ruschke, addressed the purpose and application of expanded panels during recent Patent Public Advisory Committee meetings. He highlighted that the Chief Judge has the discretion to expand a panel when deemed necessary with respect to four specific reasons detailed in the PTAB Standard Operating Procedure 1 (SOP1). Judge Ruschke noted that the…

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