Accounts that the head of the Patent Office is job shopping or otherwise frequently absent from the Patent Office have been complemented by an interview she recently gave to Law360:
According to Law360, San Francisco (May 3, 2016), Under Secretary Michelle K. Lee is planning to join a panel of the PTAB because “she’d like to see firsthand how the proceedings are running.” To the extent that the head of the Agency would fully prepare for a hearing including studying all the briefs of the case and is willing to fully work through the opinion decision and writing process, this is fine and should be welcomed. The Under Secretary has the requisite technical and legal training to do a fine job. Indeed, there is precedent for previous political appointees to do just that.
To the extent that the head of the Agency, however, would just drop in some day “to see firsthand how the proceedings are running” and not be prepared to completely study the record in advance and fully participate in the decision making process is yet another matter. It effectively deprives the litigants of a full panel decision that is their right under the procedures of the Office.
Alappat, Déjà vu: Injection of the political leadership into the substantive work of the Board can also be problematic. It is one thing for a political leader of the Office to sit on occasion and be a part of the preparations for and deliberation of a case as happened, for example, when the Hon. Sharon R. Barner was Deputy Under Secretary, where she was fully prepared and was able to participate fully in proceedings. At the other end of the spectrum one may note the notorious Board-packing activity of a former leader of the PTO, Harry Manbeck, in In re Alappat, 33 F.3d 1526,1530-36 (Fed. Cir. 1994)(en banc),. Alappat is a plurality opinion where three members agreed only with the procedural result (Archer, C.J., Nies, Plager, JJ.), while several dissented (Mayer, Michel, Clevenger, Schall, JJ., dissenting).