Earlier today a report quoted popular patent blogster Eugene Quinn’s attack on the panel in Ex parte Itagaki:   “[T]he Administrative Patent Judges that participated in [Itagaki] *** should be suspended or removed from the PTAB altogether [or] they should simply be sidelined indefinitely. At least that way they cannot do any more damage.”  [FN*]

An informed source responds:   “The three APJs on the Itagki panel are chemical APJs.  They should not have been assigned that appeal but were, due to a misguided effort on the part of the PTAB to lower the ex parte appeal backlog by assigning appeals to panels not having the requisite technical skill set.  APJs are expected to be competent in any technical area with which an assigned appeal is directed but history tells us that that fiction must be approached with caution as here.  There have been any number of sketchy decisions issued by chemical APJ panels over the past few years in cases that should have been assigned to mechanical/electrical panels that have more experience in deciding appeals having issues such as does functional language impose structure on the claim and 101 issues involving computer related inventions, etc.  The spreadsheet management style of the PTO has unfortunately infected the PTAB where every appeal and APJ is fungible.  Now with 250 APJs the PTAB is close to being unmanageable with panels having little accountability for the quality of their decisions. Like patent examiners, the APJs have their objective production quotas to meet and the quality of opinions over the last few years has significantly declined.  Hopefully the new administration will address the ex parte appeal backlog by focusing on the real problem; poor quality work by patent examiners, not by forcing APJs to work on cases outside their technical expertise under pressure to meet some production quota.”


[FN*] http://www.ipwatchdog.com/2017/01/03/ptab-mri-machine-abstract-idea-patent-ineligible/id=76554/: