Activist Director Moves On – What’s Next for the PTAB?
Agency Left to Defend Unsettled Legacy
Upon taking the reins at the USPTO, Director Iancu made clear that he believed the Patent Trial & Appeal Board (PTAB) was cancelling too many patent claims in AIA trial proceedings. Of course the PTAB was simply implementing the statutory framework given to it by Congress – and the Federal Circuit was largely affirming the PTAB’s work. So, the only possible “fix” for the Director was to rebalance the rules/practice to his liking (i.e., in favor of patent owners).
And he changed as much as he could, as fast as he could.
" Most commentators recognized that the Office must exercise discretion to help ensure that patent owners are not subject to repeated challenges against issued patents. A number of commenters favored the codification of the Office’s current approach to the exercise of discretion. Others favored codification with some modifications. Finally, certain commenters argued that the Office should grant all petitions that meet the institution threshold, while others argued that the Office should not consider repeat challenges at all.
What does this mean for the next Director? Will the new Director continue on the path of activism, or given the lawsuits and pushback take on more of a steward role? Who will the new Director be? All of these questions will be answered in the months ahead.
What will become of pending POP requests and rule making efforts without a politically appointed Director? It is hard to imagine any progress being made in either regard for the first half of 2021.
It might be nice for the PTAB to cease being a moving target for the next 6 months, but somehow…I doubt that happens.