206-217-2200

Admin law judges

lack experience, compared

to federal ones

https://www.uspto.gov/patents-application-process/appealing-patent-decisions/trials-ptab

 

The Patent Trial and Appeal Board (PTAB) is an administrative tribunal that handles patent matters.

As the US Patent and Trademark Office website says, the  PTAB

conducts trials, including inter partes, post-grant, and covered business method patent reviews and derivation proceedings; hears appeals from adverse examiner decisions in patent applications and reexamination proceedings; and renders decisions in interferences.

Like federal court judges — and specifically the appeals court judges of the federal circuit — PTAB judges can determine whether a patent lives or dies.

However, compared  to federal court judges, PTAB judges are relatively inexperienced.

The  average  age of federal court judges is about 68, according to the Federal Judicial Center. Most have decades of experience before they’re appointed to the federal bench.

91%  of federal judges had at least 15 years of experience when they were appointed to the bench, and 70%  had more than 20 years of experience.

On the other hand, a recent study by Gene Quinn of the IPWatchdog blog  found that PTAB judges have significantly less experience.

He identified 174 PTAB judges via LinkedIn and other sources and created a spreadsheet showing when they went to law school and how many years of experience they had when they were appointed to the PTAB.

He found that the median number of years of experience at the time of appointment was 11 years, with an average of 13 years.

The median number of years of experience for the judges on the PTAB was 17, with the average being 19.

Quinn found that 12.6% of PTAB judges had less than five years of experience.

Thus, some decisions about patent validity are being made by PTAB judges who were law firm associates when they joined the PTAB.

 

To receive poetic updates on IP law, sign up for our monthly collection of patent haikus and news here:

Do you have a question for our team about this?

Copy link