Online Form Will Simplify Request Procedure

To date, in order to submit an amicus brief in a PTAB case selected for Precedential Opinion Panel (POP) consideration, an interested party would either look to an Order from the Board in a subject case inviting such, or approach the Board/parties to communicate their request to the assigned panel. Today the Board introduced an online form to submit such requests directly to the agency. (here)

The Board obviously has an interest in simplifying procedures, but, of particular note here is the potential benefit of this interface to pending disputes over administrative law practices of the agency.

Decisions of the POP panel have been questioned as to APA propriety given that they do not bear the hallmarks of traditional notice-and-comment rulemaking, such as public notice, and the ability of the public to easily submit comment. As the public can now communicate in a more immediate and direct manner on such important policy developments, it may be that this mechanism moves the POP process a bit closer to traditional APA rulemaking….an argument that will undoubtedly find its way into the current APA and Arthrex briefing.

The form linked above requires the name of the submitter, any affiliation, and any client represented, and can explain why the POP request should or should not be granted. All submissions must be made within seven business days of entry of the Notification of Receipt of POP Request into the case docket or patent application file.

Scott A. McKeown is an author of the Patents Post Grant