Notice & Comment

Perspectives on the Patent Trial and Appeals Board: Scalia Law School Conference, 11/9

[CJW Note: Originally posted on 10/23, but reposted with agenda on 10/26]

From the conference website:

Perspectives on the PTAB:
The New Role of the Administrative State
in the Innovation Economy

November 9, 2017
9:30 AM – 5:00 PM
Antonin Scalia Law School, George Mason University
Arlington, Virginia

Co-sponsored by the Center for the Protection of Intellectual Property (CPIP) and the Center for the Study of the Administrative State (CSAS) at Antonin Scalia Law School, George Mason University, this conference will investigate and assess the role of the Patent Trial & Appeal Board (PTAB) as it has impacted patent law and innovation policy.

The PTAB, a new administrative tribunal charged with reviewing the validity of issued patents, has raised a host of administrative and constitutional issues. These issues are relatively new for lawyers and scholars working in patent law. They are not, however, new for specialists in administrative law who have long examined them in the context of other federal agencies.

The goal of this conference is to bring these two groups together so that they can learn from each other and promote a better understanding of how to work in this new legal and policy environment. The conference will feature paper presentations by both patent law scholars and administrative law scholars. It will also feature a “lawyers’ perspectives” panel over lunch, where experienced practitioners will discuss their experience and views of the PTAB.

This should be a really fun event, so I hope you’ll join us if you’re interested in patent law and/or agency adjudication. Register here.

Here is the full agenda:

Thursday, November 9, 2017

9:30 – 10:00 AM: Registration

10:00 – 10:15 AM: Opening Remarks

10:15 – 11:45 AM: Panel 1

  • Paper Presenter 1:
    Prof. Saurabh Vishnubhakat, Texas A&M University School of Law
  • Commentator 1:
    Prof. Stuart Graham, Scheller College of Business – Georgia Tech
  • Paper Presenters 2:
    Prof. Christopher J. Walker, The Ohio State University Moritz College of Law
    Prof. Melissa F. Wasserman, University of Texas School of Law
  • Commentator 2:
    Prof. Adam White, Antonin Scalia Law School, George Mason University
  • Moderator: Devlin HartlineAssistant Director, Center for the Protection of Intellectual Property

11:45 AM – 1:45 PM: Lunch & Panel Discussion: A Lawyers’ Perspective on the PTAB

  • David BoundyPartner, Cambridge Technology Law
  • Laurie SelfVice President and Counsel, Government Affairs, Qualcomm
  • Rob SterneFounding Director, Sterne, Kessler, Goldstein & Fox
  • Moderator: Prof. Adam Mossoff, Antonin Scalia Law School, George Mason University, Founder, Center for the Protection of Intellectual Property

1:45 – 3:15 PM: Panel 2

  • Paper Presenter 1:
    Prof. Michael S. Greve, Antonin Scalia Law School, George Mason University
  • Commentator 1:
    Prof. Arti K. Rai, Duke University School of Law
  • Paper Presenter 2:
    Prof. Emily S. Bremer, University of Wyoming College of Law
  • Commentator 2:
    Prof. Jay P. Kesan, University of Illinois College of Law
  • Moderator: Dr. David LundJohn F. Witherspoon Legal Fellow, Center for the Protection of Intellectual Property

3:15 – 3:30 PM: Break

3:30 – 5:00 PM: Panel 3

  • Paper Presenter 1:
    Prof. John F. Duffy, University of Virginia School of Law
  • Commentator 1:
    Prof. Renée Lettow Lerner, George Washington University Law School
  • Paper Presenter 2:
    Prof. Gary S. Lawson, Boston University School of Law
  • Commentator 2:
    Prof. Greg Reilly, Chicago-Kent College of Law
  • Moderator: Kevin MadiganLegal Fellow, Center for the Protection of Intellectual Property

5:00 PM: Adjourn

Melissa Wasserman and I are going to present our new paper on where PTAB adjudication fits into the modern world of agency adjudication. The paper is not quite ready for prime time, but here’s a summary of our project:

In 2011, Congress created a novel agency tribunal—the Patent Trial and Appeal Board (PTAB)—to adjudicate disputes between private parties as to the validity of issued patents. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of “formal” adjudication as contemplated by the Administrative Procedure Act (APA). Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Court will decide this Term whether PTAB adjudication unconstitutionally strips parties of their property rights in issued patents.

This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. It turns out that there is great diversity today in the procedures by which federal agencies adjudicate, and the vast majority of agency adjudications are not paradigmatic “formal” adjudications as set forth in the APA where an administrative law judge makes the initial determination with the agency head having the final word. That is the lost world of agency adjudication. The new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes—though, like the old world, the agency head retains final decisionmaking authority.

By surveying this new world of agency adjudication, it becomes clear that PTAB adjudication is not that unusual. Indeed, the PTAB proceedings incorporate many of the best practices identified across the administrative state. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decisionmaking authority. To be sure, the Director has some power to influence the final decision, in her ability to order rehearing and then stack the board with patent administrative judges who share her substantive vision. But these second-best means of agency-head control arguably raise problems of their own. This Article ultimately concludes that, for the PTAB to conform to the rest of modern agency adjudication and for the agency to have sufficient policymaking authority to ensure consistency in adjudication, the agency head must have the final say.

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