Board of Patent Appeals and Interferences
Encyclopedia
The Board of Patent Appeals and Interferences (BPAI) is an administrative law body
of the United States Patent and Trademark Office
(USPTO), which decides issues of patentability
. The Chief Administrative Patent Judge is James Donald Smith.
, handles appeals of patent examiner rejections, with sections adjudicating different technology areas. The Trial Division, with 11 Administrative Patent Judges, handles contested cases or interference proceeding
s. The BPAI is headed by a Chief Administrative Patent Judge, currently James Donald Smith, with a Vice Chief, currently James T. Moore.
the examiner's decision to the BPAI. The appeal procedure is described in section 1200 of the U.S. Manual of Patent Examining Procedure
(MPEP). Typically, appeals to the BPAI are conducted ex parte
. Decisions of the BPAI are typically rendered as an opinion
.
(CAFC) under . The decisions of the CAFC may also be reviewed on a discretionary basis
by the United States Supreme Court. The U.S. Supreme Court is the ultimate authority on the judicial standards for patentability.
The United States Congress
, however, can change the patent laws and thus override a decision of the Supreme Court.
An alternative path is a civil action against the Commissioner of Patents and Trademarks in the U.S. District Court for the District of Columbia under . Any appeal arising from such a case would then be directed to the CAFC under .
, a widely recognized patent law scholar, argued that, since 2000, the process of appointing judges to the BPAI has been unconstitutional, since the judges are appointed without approval by the U.S. Senate
.
Article I and Article III tribunals
In the United States, the American legal system includes both state courts and United States federal courts. The federal tribunals may be an Article III tribunal or another adjudicative body classified as an Article I or an Article IV tribunal...
of the United States Patent and Trademark Office
United States Patent and Trademark Office
The United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.The USPTO is based in Alexandria, Virginia,...
(USPTO), which decides issues of patentability
Patentability
Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent...
. The Chief Administrative Patent Judge is James Donald Smith.
Structure
The BPAI is primarily made up of an Appeals Division and a Trial Division. The Appeals Division, with over 100 Administrative Patent JudgesAdministrative law judge
An administrative law judge in the United States is an official who presides at an administrative trial-type hearing to resolve a dispute between a government agency and someone affected by a decision of that agency. The ALJ is usually the initial trier of fact and decision maker...
, handles appeals of patent examiner rejections, with sections adjudicating different technology areas. The Trial Division, with 11 Administrative Patent Judges, handles contested cases or interference proceeding
Interference proceeding
An interference proceeding, also known as priority contest, is an inter partes proceeding to determine the priority issues of multiple patent applications. It is a unique procedure in the patent law of the United States. Unlike in most other countries which have adopted the first-to-file system,...
s. The BPAI is headed by a Chief Administrative Patent Judge, currently James Donald Smith, with a Vice Chief, currently James T. Moore.
Procedures
An applicant can appealAppeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
the examiner's decision to the BPAI. The appeal procedure is described in section 1200 of the U.S. Manual of Patent Examining Procedure
Manual of Patent Examining Procedure
The Manual of Patent Examining Procedure is published by the United States Patent and Trademark Office for use by patent attorneys and agents and patent examiners. It describes all of the laws and regulations that must be followed in the examination of U.S. patent applications, and articulates...
(MPEP). Typically, appeals to the BPAI are conducted ex parte
Ex parte
Ex parte is a Latin legal term meaning "from one party" .An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. In Australian, Canadian, U.K., Indian and U.S...
. Decisions of the BPAI are typically rendered as an opinion
Legal opinion
In law, an opinion is usually a written explanation by a judge or group of judges that accompanies an order or ruling in a case, laying out the rationale and legal principles for the ruling....
.
Appeals
Decisions of the BPAI can be further appealed to the United States Court of Appeals for the Federal CircuitUnited States Court of Appeals for the Federal Circuit
-Vacancies and pending nominations:-List of former judges:-Chief judges:Notwithstanding the foregoing, when the court was initially created, Congress had to resolve which chief judge of the predecessor courts would become the first chief judge...
(CAFC) under . The decisions of the CAFC may also be reviewed on a discretionary basis
Procedures of the Supreme Court of the United States
The Supreme Court of the United States is the only court specifically established by the Constitution of the United States, implemented in 1789.This article is concerned with the process and procedures used by the modern court...
by the United States Supreme Court. The U.S. Supreme Court is the ultimate authority on the judicial standards for patentability.
The United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
, however, can change the patent laws and thus override a decision of the Supreme Court.
An alternative path is a civil action against the Commissioner of Patents and Trademarks in the U.S. District Court for the District of Columbia under . Any appeal arising from such a case would then be directed to the CAFC under .
Constitutionality
In 2007, Professor John F. DuffyJohn F. Duffy
John Fitzgerald Duffy is currently Professor of Law at University of Virginia School of Law in Charlottesville, Virginia. He is a Legal Commentator and Author who has written numerous articles and co-authored a scholarly book on Patent Law...
, a widely recognized patent law scholar, argued that, since 2000, the process of appointing judges to the BPAI has been unconstitutional, since the judges are appointed without approval by the U.S. Senate
Advice and consent
Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.-General:The expression is...
.
See also
- Appeal procedure before the European Patent OfficeAppeal procedure before the European Patent OfficeDecisions of the first instances of the European Patent Office can be appealed, i.e. challenged, before the Boards of Appeal of the EPO, in a judicial procedure , as opposed to an administrative procedure. These boards act as the final instances in the granting and opposition procedures before the...
- Trademark Trial and Appeal BoardTrademark Trial and Appeal BoardThe Trademark Trial and Appeal Board is a body within the United States Patent and Trademark Office responsible for hearing and deciding certain kinds of cases involving trademarks. These include appeals from decisions by USPTO Examiners denying registration of marks, and opposition proceedings...
(TTAB)
External links
- Board of Patent Appeals and Interferences (BPAI) on the USPTO web site