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ARTICLE · 12 DECEMBER 2017

Judicial Independence & The PTAB

Ropes & Gray LLP
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As I have pointed out previously, the Board struggles to issue precedential decisions. This is because the Board (now approaching 300 judges) must reach a "sufficient majority" consensus...

United StatesIntellectual Property
Scott A. McKeown
Scott A. McKeown
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The Tension Between Judicial Independence & Agency Consistency

As I have pointed out previously, the Board struggles to issue precedential decisions. This is because the Board (now approaching 300 judges) must reach a "sufficient majority" consensus on an issue before designating it precedential. As a practical matter, this outdated process excludes all but the most straight forward questions of law from receiving enough "yes" votes to be designated precedential.

To be sure, such disparity in opinion across a large number of judges is not surprising on close questions of law. Reasonable minds differ. Which is why it is somewhat surprising that 98% of PTAB merit-based decisions are unanimous.

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