Request for Comments on a Proposed Pilot Program Exploring an Alternative Approach to Institution Decisions in Post Grant Administrative Reviews, 51540-51542 [2015-21052]
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51540
Federal Register / Vol. 80, No. 164 / Tuesday, August 25, 2015 / Notices
return to the research area to conduct
more experimental tows. The temporary
exemption from the regulated size and
possession limits would allow for scup,
windowpane flounder, and various
bycatch species to be onboard the vessel
while sampling and weighing activities
are taking place prior to discard.
The project will be conducted
primarily during the fall months
(September-November), while both scup
and windowpane flounder reside
predominately inshore, with the two
species occurring together in high
numbers south of Long Island, NY, and
Nantucket, MA. However, trips may also
occur in the spring if more data or
additional trips are needed.
The participating vessels would
conduct research fishing concurrently,
orienting the vessels side-by-side,
within a half mile of each other while
fishing gear is deployed. The vessels
would be using typical scup trawl
fishing methods and the participants
would be members of the small mesh
scup trawl fleet, holding scup permits.
To test the experimental gear, one vessel
will have its scup net modified with the
large-mesh belly panel installed into the
first belly of the net, the other vessel
will have the same scup net without the
large-mesh belly panel added. The
resulting catch data will identify the
differences in catch between the
standard net and the experimental net.
The vessels will alternate the use of the
standard net and the net with the
experimental gear, giving each vessel
the same amount of tows using each
gear type. The two vessels would be of
similar size and horsepower with
identical doors, legs, and ground cables.
The vessels will concurrently conduct
seven days of research fishing over the
course of two to three trips, with a
minimum of six tows per day for each
vessel, with each tow lasting an hour.
This will provide a minimum of 84 tows
(42 with the standard net and 42 with
the experimental net) for the research
project. Each vessel would weigh its
respective catch of both scup and
windowpane flounder and measure the
length of 100 random samples of each
species after each tow. If fewer than 100
individuals from a sample species are
caught, all individuals will be
measured. The total weight of all
additional species from each tow will be
obtained either by weighing or by catch
estimations.
The vessels would retain legal size
scup and other legally permitted species
to be landed and sold. Windowpane
flounder and other prohibited species
will not be retained. No additional
mortality of fish species or interactions
with protected species would occur
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during this project, beyond that of
typical commercial scup trawl
operations.
If approved, the applicant may
request minor modifications and
extensions to the EFP throughout the
year. EFP modifications and extensions
may be granted without further notice if
they are deemed essential to facilitate
completion of the proposed research
and have minimal impacts that do not
change the scope or impact of the
initially approved EFP request. Any
fishing activity conducted outside the
scope of the exempted fishing activity
would be prohibited.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 20, 2015.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
National Marine Fisheries Service.
[FR Doc. 2015–21008 Filed 8–24–15; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
United States Patent and Trademark
Office
[Docket No.: PTO–P–2015–0055]
Request for Comments on a Proposed
Pilot Program Exploring an Alternative
Approach to Institution Decisions in
Post Grant Administrative Reviews
United States Patent and
Trademark Office, Commerce.
ACTION: Request for comments.
AGENCY:
The United States Patent and
Trademark Office (USPTO) is requesting
comments on a proposed pilot program
pertaining to the institution and
conduct of the post grant administrative
trials provided for in the Leahy-Smith
America Invents Act (AIA). The AIA
provides for the following post grant
administrative trials: Inter Partes
Review (IPR), Post-Grant Review (PGR),
and Covered Business Method Review
(CBM). The USPTO currently has a
panel of three APJs decide whether to
institute a trial, and then normally has
the same three-APJ panel conduct the
trial, if instituted. The USPTO is
considering a pilot program under
which the determination of whether to
institute an IPR will be made by a single
APJ, with two additional APJs being
assigned to the IPR if a trial is instituted.
Under this pilot program, any IPR trial
will be conducted by a panel of three
APJs, two of whom were not involved
in the determination to institute the IPR.
DATES: Comment Deadline Date: To be
ensured of consideration, written
SUMMARY:
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comments must be received on or before
October 26, 2015.
ADDRESSES: Comments must be sent by
electronic mail message over the
Internet addressed to: PTABTrialPilot@
uspto.gov. Electronic comments
submitted in plain text are preferred,
but also may be submitted in ADOBE®
portable document format or
MICROSOFT WORD® format. The
comments will be available for viewing
via the USPTO’s Internet Web site
(https://www.uspto.gov). Because
comments will be made available for
public inspection, information that the
submitter does not desire to make
public, such as an address or phone
number, should not be included in the
comments.
FOR FURTHER INFORMATION CONTACT:
Scott R. Boalick, Vice Chief
Administrative Patent Judge, Patent
Trial and Appeal Board, by telephone at
(571) 272–9797.
SUPPLEMENTARY INFORMATION:
Introduction: The first petitions for
AIA post grant administrative trials
were filed on September 16, 2012. Since
then, over 3,600 petitions have been
filed, and over 1,500 trials have been
instituted. The USPTO has thus far been
able to meet the demands placed on its
resources created by the unexpectedly
heavy workload. The Patent Trial and
Appeal Board (PTAB) has issued over
2,200 decisions on institution and over
450 final written decisions. In threeplus years, the PTAB has not missed
one statutory or regulatory deadline. At
the same time, the PTAB has reduced
the backlog of ex parte appeals.
Notwithstanding the success-to-date,
the USPTO is pro-actively looking for
ways to enhance its operations for the
benefit of its stakeholders and therefore
is interested in exploring alternative
approaches that might improve its
efficiency in handling AIA post grant
proceedings while being fair to both
sides and continuing to provide high
quality decisions. Based upon
comments received from the public
through public fora and formal requests,
the agency is considering a pilot
program to test changing how the
institution phase of a post grant
proceeding is handled.
Once trial is instituted, the AIA
mandates that the resulting trial be
conducted before a three-member panel
of the PTAB. Generally, under current
practice, the same panel of three
administrative patent judges (APJs)
decides whether to institute and, if
instituted, handles the remainder of the
proceeding, much like how federal
district court judges handle cases
through motions to dismiss, summary
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Federal Register / Vol. 80, No. 164 / Tuesday, August 25, 2015 / Notices
judgment, and trial. But a three-judge
panel of the PTAB is not required under
the statute prior to institution, and the
USPTO believes it is prudent to explore
other potentially more efficient options,
especially given that the number of
petitions filed may continue to increase.
To date and currently, the agency has
intended to meet the resource demands
on the PTAB due to both AIA post grant
proceedings and ex parte appeals by
hiring additional judges. Even with
continued hiring, however, increases in
filings and the growing number of cases
may strain the PTAB’s continuing
ability to make timely decisions and
meet statutory deadlines. Therefore, the
agency wishes to explore and gain data
on a potentially more efficient
alternative to the current three-judge
institution model. Having a single judge
decide whether to institute trial in a
post grant proceeding, instead of a panel
of three judges, would allow more
judges to be available to attend to other
matters, such as reducing the ex parte
appeal backlog and handling more post
grant proceedings.
Background: As discussed previously,
the AIA provides for IPR, PGR, and
CBM trials, under which a petitioner
may seek cancellation of one or more
claims of a patent. The AIA provides
that the Director decides whether to
institute an IPR, PGR, or CBM trial. See
35 U.S.C. 314 and 324. An IPR is not
instituted unless there is a
determination that the petition
demonstrates that there is a reasonable
likelihood that at least one of the claims
challenged in the petition is
unpatentable. See 35 U.S.C. 314(a). A
PGR or CBM is not instituted unless
there is a determination that the
petition, if unrebutted, demonstrates
that it is more likely than not that at
least one of the claims challenged in the
petition is unpatentable. See 35 U.S.C.
324(a). Alternatively, a PGR or CBM
may be instituted where the petition
raises a novel or unsettled legal question
that is important to other patents or
patent applications. See 35 U.S.C.
324(b). Once instituted, and after a trial
is conducted, the PTAB issues a final
written decision with respect to the
patentability of any patent claim
challenged by the petitioner and any
new claim added during the review. See
35 U.S.C. 318 and 328. The final
determination in an IPR, PGR, or CBM
must, with limited exceptions, be issued
not later than one year after the date on
which the institution of the IPR, PGR, or
CBM is noticed. See 35 U.S.C. 316(a)(11)
and 326(a)(11); 37 CFR 42.100(c), 200(c),
and 300(c).
The authority to determine whether to
institute and conduct a trial has been
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delegated to a Board member or
employee acting with the authority of
the Board. See 37 CFR 42.4; see also
Rules of Practice for Trials Before the
Patent Trial and Appeal Board and
Judicial Review of Patent Trial and
Appeal Board Decisions, 77 FR 48612,
48647 (Aug. 14, 2012). As a result,
neither the AIA nor the USPTO’s rules
require that an institution decision be
made by a panel of multiple individuals
within the USPTO. The AIA does,
however, require that the final written
decision in an IPR, PGR, or CBM be
rendered by a panel of at least three
APJs. See 35 U.S.C. 6(c). The PTAB has
developed the practice of deciding
whether to institute an IPR, PGR, or
CBM trial via three-APJ panels, and then
conducting the trial, if instituted,
usually by the same three-APJ panel.
Proposed Pilot Program: The USPTO
is seeking input on whether to conduct
a pilot program under which a single
APJ would decide whether to institute
an IPR trial, with two additional APJs
being assigned to conduct the IPR trial,
if instituted. Under this pilot program,
any IPR trial will be conducted by a
panel of three APJs, two of whom were
not involved in the determination to
institute the IPR.
Conduct of Proposed Pilot Program:
The USPTO is considering selecting
certain petitions for inclusion in the
proposed pilot program from among all
IPR petitions filed during a specific
period. The selection would continue
for at least three and up to six months.
The pilot program would be limited to
IPRs. The USPTO would consider the
results of this pilot program to
determine whether and to what degree
to implement this approach more
generally in the future, for example,
potentially only in response to an
unusually high volume of petitions.
Due to the inter partes nature of IPR
trials and the need to avoid selection
bias during the evaluation of the results,
it is not practical to allow petitioners or
patentees to request participation in, or
exclusion from, the pilot program.
Finally, it is possible that an IPR
initially selected for the single-APJ pilot
program will ultimately be determined
unsuitable for inclusion in the pilot. In
such a situation, the IPR would be
removed from the proposed single-APJ
pilot program.
Assignment of Trial Panel under the
Single-Judge Pilot Program: If the singleAPJ decision results in institution of
trial, the PTAB would, after institution,
assign two additional APJs to the panel
for rendering interlocutory decisions, as
needed, and for issuing a final written
decision on the merits. The PTAB may
assign three new APJs to the panel, for
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51541
example, in the rare circumstance that
the APJ who granted the institution is
not available to sit on the panel post
institution or where, due to workloads,
it would be more efficient to assign a
new three-judge panel to the
proceeding. When possible, the trial
panel assignment would maintain the
role of the single APJ as the judge
generally managing the proceeding
during trial. This would ensure that the
judge most familiar with the IPR has the
responsibility of coordinating
interlocutory activity with the parties
during trial.
Scheduling Order: Typically, when
trial is instituted, a scheduling order is
entered concurrently with the decision
on institution. To allow for coordination
of deadlines and the trial panel’s
availability for oral argument and other
due dates, the scheduling order in trials
instituted pursuant to a decision under
this pilot program will not be entered
concurrently with the decision on
institution. The PTAB expects that, after
the trial panel is notified of the
assignment, the panel will issue
promptly a scheduling order for the IPR.
Question for Public Comment: The
USPTO is inviting written comments
from any member of the public on the
pilot program under consideration.
Specifically, the USPTO is seeking
comment on any issue relevant to the
design and implementation of a pilot
program under which an IPR trial is
conducted by a panel of three APJs in
which two of the APJs were not
involved in the determination to
institute the IPR. In particular, the
USPTO is seeking public input on the
following questions.
Questions
1. Should the USPTO conduct the
single-APJ institution pilot program as
proposed herein to explore changes to
the current panel assignment practice in
determining whether to institute review
in a post grant proceeding?
2. What are the advantages or
disadvantages of the proposed singleAPJ institution pilot program?
3. How should the USPTO handle a
request for rehearing of a decision on
whether to institute trial made by a
single APJ?
4. What information should the
USPTO include in reporting the
outcome of the proposed single-APJ
institution pilot program?
5. Are there any other suggestions for
conservation and more efficient use of
the judicial resources at the PTAB?
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51542
Federal Register / Vol. 80, No. 164 / Tuesday, August 25, 2015 / Notices
Dated: August 20, 2015.
Michelle K. Lee,
Under Secretary of Commerce for Intellectual
Property and Director of the United States
Patent and Trademark Office.
[FR Doc. 2015–21052 Filed 8–24–15; 8:45 am]
BILLING CODE 3510–16–P
DEPARTMENT OF DEFENSE
Office of the Secretary
Independent Review Panel on Military
Medical Construction Standards;
Notice of Federal Advisory Committee
Meeting
Department of Defense (DoD).
ACTION: Notice of meeting.
AGENCY:
The Department of Defense is
publishing this notice to announce the
following Federal Advisory Committee
meeting of the Independent Review
Panel on Military Medical Construction
Standards (‘‘the Panel’’).
DATES:
SUMMARY:
asabaliauskas on DSK5VPTVN1PROD with NOTICES
Friday, September 11, 2015
8:00 a.m.–9:00 a.m. EDT
(Administrative Working Meeting)
9:00 a.m.–11:30 a.m. EDT (Open
Session)
11:30 a.m.–1:30 p.m. EDT
(Administrative Working Meeting)
ADDRESSES: Falls Church Marriott
Fairview Park, 3111 Fairview Park
Drive, Falls Church, Virginia, 22042.
FOR FURTHER INFORMATION CONTACT: The
Executive Director and Designated
Federal Officer is Ms. Christine Bader,
7700 Arlington Boulevard, Suite 5101,
Falls Church, Virginia 22042,
Christine.e.bader.civ@mail.mil, (703)
681–6653, Fax: (703) 681–9539. For
meeting information, please contact Ms.
Kendal Brown, 7700 Arlington
Boulevard, Suite 5101, Falls Church,
Virginia 22042, Kendal.l.brown2.ctr@
mail.mil, (703) 681–6670, Fax: (703)
681–9539.
SUPPLEMENTARY INFORMATION: This
meeting is being held under the
provisions of the Federal Advisory
Committee Act of 1972 (5 U.S.C.,
Appendix, as amended), the
Government in the Sunshine Act of
1976 (5 U.S.C. 552b, as amended), and
41 CFR 102–3.150.
Purpose of the Meeting
At this meeting, the Panel will
publically deliberate its findings and
recommendations of its final report
addressing the Ike Skelton National
Defense Authorization Act (NDAA) for
Fiscal Year 2011 (Pub. L. 111–383),
Section 2852(b) requirement to provide
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the Secretary of Defense independent
advice and recommendations regarding
a construction standard for military
medical centers to provide a single
standard of care, as set forth in this
notice:
a. Reviewing the unified military
medical construction standards to
determine the standards consistency
with industry practices and benchmarks
for world class medical construction;
b. Reviewing ongoing construction
programs within the DoD to ensure
medical construction standards are
uniformly applied across applicable
military centers;
c. Assessing the DoD approach to
planning and programming facility
improvements with specific emphasis
on facility selection criteria and
proportional assessment system; and
facility programming responsibilities
between the Assistant Secretary of
Defense for Health Affairs and the
Secretaries of the Military Departments;
d. Assessing whether the
Comprehensive Master Plan for the
National Capital Region Medical (‘‘the
Master Plan’’), dated April 2010, is
adequate to fulfill statutory
requirements, as required by section
2714 of the Military Construction
Authorization Act for Fiscal Year 2010
(division B of Pub. L. 111–84; 123 Stat.
2656), to ensure that the facilities and
organizational structure described in the
Master Plan result in world class
military medical centers in the National
Capital Region; and
e. Making recommendations regarding
any adjustments of the Master Plan that
are needed to ensure the provision of
world class military medical centers and
delivery system in the National Capital
Region.
Agenda
Pursuant to 5 U.S.C. 552b, as
amended, and 41 CFR 102–3.140
through 102–3.165 and subject to
availability of space, the Panel meeting
is open to the public from 9:00 a.m. to
11:30 a.m. on September 11, 2015, as
the Panel will meet in an open forum to
deliberate the findings and
recommendations that will be contained
in the Panel’s final report to the
Secretary of Defense.
Availability of Materials for the
Meeting
A copy of the agenda or any updates
to the agenda for the September 11,
2015, meeting, as well as any other
materials presented, may be obtained at
the meeting.
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Public’s Accessibility to the Meeting
Pursuant to 5 U.S.C. 552b, as
amended, and 41 CFR 102–3.140
through 102–3.165 and subject to
availability of space, this meeting is
open to the public. Seating is limited
and is on a first-come basis. All
members of the public who wish to
attend the public meeting must contact
Ms. Kendal Brown at the number listed
in the section FOR FURTHER INFORMATION
CONTACT no later than 12:00 p.m. on
Tuesday, September 1, 2015, to register.
Special Accommodations
Individuals requiring special
accommodations to access the public
meeting should contact Ms. Kendal
Brown at least five (5) business days
prior to the meeting so that appropriate
arrangements can be made.
Written Statements
Any member of the public wishing to
provide comments to the Panel may do
so in accordance with 41 CFR 102–
3.105(j) and 102–3.140 and section
10(a)(3) of the Federal Advisory
Committee Act, and the procedures
described in this notice.
Individuals desiring to provide
comments to the Panel may do so by
submitting a written statement to the
Executive Director (see FOR FURTHER
INFORMATION CONTACT). Written
statements should address the following
details: the issue, discussion, and a
recommended course of action.
Supporting documentation may also be
included, as needed, to establish the
appropriate historical context and to
provide any necessary background
information.
The Executive Director will review all
timely submissions with the Panel
Chairperson and ensure they are
provided to members of the Panel before
the meeting that is subject to this notice.
After reviewing the written comments,
the Panel Chairperson and the Executive
Director may choose to invite the
submitter to orally present their issue
during the open portion of this meeting.
The Executive Director, in consultation
with the Panel Chairperson, may allot
time for members of the public to
present their issues for review and
discussion by the Panel.
Dated: August 20, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2015–20956 Filed 8–24–15; 8:45 am]
BILLING CODE 5001–06–P
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Agencies
[Federal Register Volume 80, Number 164 (Tuesday, August 25, 2015)]
[Notices]
[Pages 51540-51542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21052]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
[Docket No.: PTO-P-2015-0055]
Request for Comments on a Proposed Pilot Program Exploring an
Alternative Approach to Institution Decisions in Post Grant
Administrative Reviews
AGENCY: United States Patent and Trademark Office, Commerce.
ACTION: Request for comments.
-----------------------------------------------------------------------
SUMMARY: The United States Patent and Trademark Office (USPTO) is
requesting comments on a proposed pilot program pertaining to the
institution and conduct of the post grant administrative trials
provided for in the Leahy-Smith America Invents Act (AIA). The AIA
provides for the following post grant administrative trials: Inter
Partes Review (IPR), Post-Grant Review (PGR), and Covered Business
Method Review (CBM). The USPTO currently has a panel of three APJs
decide whether to institute a trial, and then normally has the same
three-APJ panel conduct the trial, if instituted. The USPTO is
considering a pilot program under which the determination of whether to
institute an IPR will be made by a single APJ, with two additional APJs
being assigned to the IPR if a trial is instituted. Under this pilot
program, any IPR trial will be conducted by a panel of three APJs, two
of whom were not involved in the determination to institute the IPR.
DATES: Comment Deadline Date: To be ensured of consideration, written
comments must be received on or before October 26, 2015.
ADDRESSES: Comments must be sent by electronic mail message over the
Internet addressed to: PTABTrialPilot@uspto.gov. Electronic comments
submitted in plain text are preferred, but also may be submitted in
ADOBE[supreg] portable document format or MICROSOFT WORD[supreg]
format. The comments will be available for viewing via the USPTO's
Internet Web site (https://www.uspto.gov). Because comments will be made
available for public inspection, information that the submitter does
not desire to make public, such as an address or phone number, should
not be included in the comments.
FOR FURTHER INFORMATION CONTACT: Scott R. Boalick, Vice Chief
Administrative Patent Judge, Patent Trial and Appeal Board, by
telephone at (571) 272-9797.
SUPPLEMENTARY INFORMATION:
Introduction: The first petitions for AIA post grant administrative
trials were filed on September 16, 2012. Since then, over 3,600
petitions have been filed, and over 1,500 trials have been instituted.
The USPTO has thus far been able to meet the demands placed on its
resources created by the unexpectedly heavy workload. The Patent Trial
and Appeal Board (PTAB) has issued over 2,200 decisions on institution
and over 450 final written decisions. In three-plus years, the PTAB has
not missed one statutory or regulatory deadline. At the same time, the
PTAB has reduced the backlog of ex parte appeals.
Notwithstanding the success-to-date, the USPTO is pro-actively
looking for ways to enhance its operations for the benefit of its
stakeholders and therefore is interested in exploring alternative
approaches that might improve its efficiency in handling AIA post grant
proceedings while being fair to both sides and continuing to provide
high quality decisions. Based upon comments received from the public
through public fora and formal requests, the agency is considering a
pilot program to test changing how the institution phase of a post
grant proceeding is handled.
Once trial is instituted, the AIA mandates that the resulting trial
be conducted before a three-member panel of the PTAB. Generally, under
current practice, the same panel of three administrative patent judges
(APJs) decides whether to institute and, if instituted, handles the
remainder of the proceeding, much like how federal district court
judges handle cases through motions to dismiss, summary
[[Page 51541]]
judgment, and trial. But a three-judge panel of the PTAB is not
required under the statute prior to institution, and the USPTO believes
it is prudent to explore other potentially more efficient options,
especially given that the number of petitions filed may continue to
increase.
To date and currently, the agency has intended to meet the resource
demands on the PTAB due to both AIA post grant proceedings and ex parte
appeals by hiring additional judges. Even with continued hiring,
however, increases in filings and the growing number of cases may
strain the PTAB's continuing ability to make timely decisions and meet
statutory deadlines. Therefore, the agency wishes to explore and gain
data on a potentially more efficient alternative to the current three-
judge institution model. Having a single judge decide whether to
institute trial in a post grant proceeding, instead of a panel of three
judges, would allow more judges to be available to attend to other
matters, such as reducing the ex parte appeal backlog and handling more
post grant proceedings.
Background: As discussed previously, the AIA provides for IPR, PGR,
and CBM trials, under which a petitioner may seek cancellation of one
or more claims of a patent. The AIA provides that the Director decides
whether to institute an IPR, PGR, or CBM trial. See 35 U.S.C. 314 and
324. An IPR is not instituted unless there is a determination that the
petition demonstrates that there is a reasonable likelihood that at
least one of the claims challenged in the petition is unpatentable. See
35 U.S.C. 314(a). A PGR or CBM is not instituted unless there is a
determination that the petition, if unrebutted, demonstrates that it is
more likely than not that at least one of the claims challenged in the
petition is unpatentable. See 35 U.S.C. 324(a). Alternatively, a PGR or
CBM may be instituted where the petition raises a novel or unsettled
legal question that is important to other patents or patent
applications. See 35 U.S.C. 324(b). Once instituted, and after a trial
is conducted, the PTAB issues a final written decision with respect to
the patentability of any patent claim challenged by the petitioner and
any new claim added during the review. See 35 U.S.C. 318 and 328. The
final determination in an IPR, PGR, or CBM must, with limited
exceptions, be issued not later than one year after the date on which
the institution of the IPR, PGR, or CBM is noticed. See 35 U.S.C.
316(a)(11) and 326(a)(11); 37 CFR 42.100(c), 200(c), and 300(c).
The authority to determine whether to institute and conduct a trial
has been delegated to a Board member or employee acting with the
authority of the Board. See 37 CFR 42.4; see also Rules of Practice for
Trials Before the Patent Trial and Appeal Board and Judicial Review of
Patent Trial and Appeal Board Decisions, 77 FR 48612, 48647 (Aug. 14,
2012). As a result, neither the AIA nor the USPTO's rules require that
an institution decision be made by a panel of multiple individuals
within the USPTO. The AIA does, however, require that the final written
decision in an IPR, PGR, or CBM be rendered by a panel of at least
three APJs. See 35 U.S.C. 6(c). The PTAB has developed the practice of
deciding whether to institute an IPR, PGR, or CBM trial via three-APJ
panels, and then conducting the trial, if instituted, usually by the
same three-APJ panel.
Proposed Pilot Program: The USPTO is seeking input on whether to
conduct a pilot program under which a single APJ would decide whether
to institute an IPR trial, with two additional APJs being assigned to
conduct the IPR trial, if instituted. Under this pilot program, any IPR
trial will be conducted by a panel of three APJs, two of whom were not
involved in the determination to institute the IPR.
Conduct of Proposed Pilot Program: The USPTO is considering
selecting certain petitions for inclusion in the proposed pilot program
from among all IPR petitions filed during a specific period. The
selection would continue for at least three and up to six months. The
pilot program would be limited to IPRs. The USPTO would consider the
results of this pilot program to determine whether and to what degree
to implement this approach more generally in the future, for example,
potentially only in response to an unusually high volume of petitions.
Due to the inter partes nature of IPR trials and the need to avoid
selection bias during the evaluation of the results, it is not
practical to allow petitioners or patentees to request participation
in, or exclusion from, the pilot program.
Finally, it is possible that an IPR initially selected for the
single-APJ pilot program will ultimately be determined unsuitable for
inclusion in the pilot. In such a situation, the IPR would be removed
from the proposed single-APJ pilot program.
Assignment of Trial Panel under the Single-Judge Pilot Program: If
the single-APJ decision results in institution of trial, the PTAB
would, after institution, assign two additional APJs to the panel for
rendering interlocutory decisions, as needed, and for issuing a final
written decision on the merits. The PTAB may assign three new APJs to
the panel, for example, in the rare circumstance that the APJ who
granted the institution is not available to sit on the panel post
institution or where, due to workloads, it would be more efficient to
assign a new three-judge panel to the proceeding. When possible, the
trial panel assignment would maintain the role of the single APJ as the
judge generally managing the proceeding during trial. This would ensure
that the judge most familiar with the IPR has the responsibility of
coordinating interlocutory activity with the parties during trial.
Scheduling Order: Typically, when trial is instituted, a scheduling
order is entered concurrently with the decision on institution. To
allow for coordination of deadlines and the trial panel's availability
for oral argument and other due dates, the scheduling order in trials
instituted pursuant to a decision under this pilot program will not be
entered concurrently with the decision on institution. The PTAB expects
that, after the trial panel is notified of the assignment, the panel
will issue promptly a scheduling order for the IPR.
Question for Public Comment: The USPTO is inviting written comments
from any member of the public on the pilot program under consideration.
Specifically, the USPTO is seeking comment on any issue relevant to the
design and implementation of a pilot program under which an IPR trial
is conducted by a panel of three APJs in which two of the APJs were not
involved in the determination to institute the IPR. In particular, the
USPTO is seeking public input on the following questions.
Questions
1. Should the USPTO conduct the single-APJ institution pilot
program as proposed herein to explore changes to the current panel
assignment practice in determining whether to institute review in a
post grant proceeding?
2. What are the advantages or disadvantages of the proposed single-
APJ institution pilot program?
3. How should the USPTO handle a request for rehearing of a
decision on whether to institute trial made by a single APJ?
4. What information should the USPTO include in reporting the
outcome of the proposed single-APJ institution pilot program?
5. Are there any other suggestions for conservation and more
efficient use of the judicial resources at the PTAB?
[[Page 51542]]
Dated: August 20, 2015.
Michelle K. Lee,
Under Secretary of Commerce for Intellectual Property and Director of
the United States Patent and Trademark Office.
[FR Doc. 2015-21052 Filed 8-24-15; 8:45 am]
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