Chief Administrative Patent Judge

The USPTO needs to hire a new Chief Administrative Patent Judge — head of the Patent Trial and Appeal Board. Apply here https://www.usajobs.gov/GetJob/ViewDetails/425567200.

The Chief Administrative Patent Judge (Chief Judge) is a full voting member of the Patent Trial and Appeal Board (Board) as provided by Title 35 U.S. Code, Section 6, and is the immediate supervisor of the Deputy Chief Administrative Judge and second-line supervisor for all of the lead Administrative Patent Judges (Judges) assigned to the Board. The Director, the Deputy Director, the Commissioner for Patents, the Commissioner for Trademarks, and the several administrative patent judges (including the Chief Judge, Deputy Chief Judge, Vice Chief Judges, and Lead Judges) constitute the membership of the Board. Any three or more of these individuals may constitute a legal panel of the Board to render a decision in a patent appeal, an interference proceeding, a post grant review proceeding, an inter partes review proceeding, a derivation proceeding, or a proceeding under the Transitional Program for Covered Business Methods Patents (TPCBMP). The Board has the sole authority to hear and adjudicate patent appeals from decisions of Primary Patent Examiners. The Board also holds oral hearings when requested, and has the authority to grant rehearings.With respect to patent appeals, final decisions of the Board, if unfavorable to an applicant, may be appealed to the United States Court of Appeals for the Federal Circuit in accordance with 35 U.S.C. § 141. Alternatively, dissatisfied applicants may elect to bring a civil action in accordance with 35 U.S.C. § 145. With respect to interferences, final decisions of the Board, if unfavorable to a party, may be appealed to the United States Court of Appeals for the Federal Circuit in accordance with 35 U.S.C. § 141. Alternatively, dissatisfied parties may elect to bring a civil action in accordance with 35 U.S.C. § 146. With respect to inter partes reviews, post grant reviews, and proceedings under the TPCBMP, final decisions of the Board, if unfavorable to a party, may be appealed only to the United States Court of Appeals for the Federal Circuit in accordance with 35 U.S.C. § 141. With respect to derivation proceedings, final decisions of the Board, if unfavorable to a party, may be appealed to the United States Court of Appeals for the Federal Circuit in accordance with 35 U.S.C. § 141. Alternatively, dissatisfied parties may elect to bring a civil action in accordance with 35 U.S.C. § 146.

The Chief Judge is responsible for developing and implementing the USPTO rules associated with patent appeals, interferences, post grant reviews, inter partes reviews, derivations, and TPCBMP. … The Chief Judge is also responsible for developing and implementing the Standard Operating Procedures necessary for the internal operation of the Board. Furthermore, the Chief Judge is responsible for adjudicating petitions for the Under Secretary of Commerce for Intellectual Property and Director of the USPTO.

The Chief Judge is responsible for the oversight and management of all Board operations. This requires performing the comprehensive executive management, strategic planning, and financial functions essential to effective Board operations. The Chief Judge is also responsible for the assignment of panels of administrative patent judges to adjudicate all patent appeals and interference proceedings, on which panels the Chief Judge periodically serves. The Chief Judge further develops and implements quality, timeliness, and productivity performance standards for the Judges to appropriately address filing and backlog issues.

For qualifications, the USPTO requires senior level management and technical experience in the areas of patent law and management.  This includes both a technical degree and a law degree and must be an attorney in good-standing.

 

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

61 thoughts on “Chief Administrative Patent Judge

  1. OT but the lengthy (75 minute) oral arguments before the CAFC yesterday in the multiple-patent Samsung v. Apple case included an interesting discussion about obviousness (note: this case relates to Apple’s utility patents, not their design patent(s)).

    Let’s say a competitor device has a “feature” that you find appealing. You decide to incorporate that “feature” in your device. You perform that incorporation from scratch, i.e., you don’t have the competitor device and you don’t know how the competitor device achieves the “feature”. The “feature” itself — the “functionality” that a user “experiences” — is unpatentable as obvious.

    After you incorporate the feature, a patent application is published describing an implementation of the feature. It turns out that the technique you employed to implement the “feature” is identical to the technique that is claimed (which is narrower than a broad description of the “feature” itself).

    Question: Does your incorporation of the unpatentable “feature” qualify as secondary indicia of the non-obviousness of the claim? Is the commercial success of the “feature” (as opposed to the specific implementation) evidence of the non-obviousness of the claim? It seems to me these facts would weigh in favor of an obviousness finding.

    My take based on the oral arguments is that Apple is going to lose all or part of its case against Samsung with respect to the slide-to-unlock and the auto-correct features and there is a good chance of the jury’s infringement finding (based on yet another junky Apple software patent) being reversed. Some light entertainment can be found roughly 2/3 of the way into the recording as the term “heuristic” is defined as a “rule of thumb” by Apple’s attorney and one of the judge’s asks “What does the thumb have to do with it”?

    1. MM, “Let’s say a competitor device has a “feature” that you find appealing.

      One of these secondary considerations has since Learned Hand been copying by a competitor of a feature which is the subjected of the patent in suit. What I hear you to say is that the Federal Circuit is considering junking this secondary consideration based upon some flimsy argument by Samsung. That should be of concern everybody.

      1. Ned: copying by a competitor of a feature

        Note that in my hypothetical there is a big difference between a “feature” (which I’m equating with a “functionality”), on one hand, and a patent claim describing a specific way of achieiving that functionality on the other.

        For starters, the former isn’t eligible for patenting regardless of its non-obviousness.

        Put another way, “I claim: slide to unlock” is a d.o.a. claim and has been such since the very beginning of the US patent system. That’s why Apple threw the awesome term “heuristic” into its (still) junky claim.

        So again, the question: how is my exact copying of your ineligible and unpatentable “functionality” evidence of the non-obviousness of your detailed explanation of how you achieved that functionality claim when I was not privy to your explanation?

        The answer is: it’s not evidence of non-obviousness. On the contrary, if it turns out that I’ve achieved your unpatentable functionality using the detailed method you later explained to the public, then that is evidence that your detailed method is obvious. If Learned Hand couldn’t wrap his head around this, then Learned Hand wasn’t thinking too deeply about the issues.

    2. Hindsight MM: (based on yet another junky Apple software patent)

      Can you remind us again why you didn’t file a patent for the slide to unlock invention before Apple so you could retire from your tiring job of paid blogger?

      1. Can you remind us again why you didn’t file a patent for the slide to unlock invention

        I guess I was too busy perfecting my “empty the virtual litter box to delete files” invention.

        But please go ahead and keep worshipping the most ridiculous junk ever foisted on any patent system in the history of the universe. After all, without Apple’s patent, you’d probably be stealing data from smartphones left and right because, hey, who wouldn’t want all that money if they could get away with it? Better grab it fast or someone else might grab it first and then you’ll feel really jealous because … money. Mmmmm, money.

      2. I can’t imagine why I didn’t file this junk claim, either:

        6134532

        1. A computerized system for associating an observed behavior with items, comprising:

        a converter capable of converting the observed behavior to a behavior vector;

        a profile adapter capable of modifying a profile vector with the behavior vector; and

        a comparater capable of comparing the modified profile vector to a plurality of entity vectors, the entity vectors indicative of the items, so as to identify at least one entity vector closely associated with the observed behavior.

        Deep, deep super techno stuff! I’m sure all the inventors were right there in the room when vector modeling of information was conceived. Nobody could predict how it would be used!

        Funny lines in the specification:

        Since users can control the retrieval of information, the advertising techniques utilized in the conventional broadcast model has become less effective and can alienate potential customers as a result of the “shotgun” effect.

        Thank goodness nobody finds targeted advertisements “alienating”!

        The system matches users to entities in a manner that improves with increased operation and observation of user behavior.

        Totally different from the prior art targeted advertising methods! LOL And on and on.

        1. MM, I agree with you that the system here is old and obvious. Invention, if any, was in the how.

          I wonder how this claim got through the PTO?

  2. This seems like a slow post, so hopefully it is an appropriate place to put this question.

    Professor Crouch, can you expand on the basis for “hybrid functional claims”? I’ve been perplexed by how easily this technique is accepted for awhile. It is very confusing how what appears to be a limited authorization of a set (112f), is instead interpreted to be a restriction on a subset.

    It would be very helpful for a respected voice to explain the subject.

  3. This may be a disappointment to those who like to explain everything in life by conspiracy theories, but the PTAB CAPJ does not even get one of the three votes on Board decisions except for the small number [including the very rare Expanded Board decisions] she or he actively participates on. Nor does the CAPJ even have authority to overrule or fire other APJ’s. [Which makes being a manager even more difficult, and requires a lot of tact.] On top of that, it requires patently taking a lot of flack in CLE programs and other public appearances from folks who hate the current patent statute and current Supreme Court and Fed. Cir. decisions, which the Board had nothing to do with but must enforce. Usually the job has gone to a present APJ or a PTO Solicitor.

    1. BTW, a nit, but whomever wrote up the above CAPJ job description was apparently unaware that the alternative appeal route from Board to a D.C. [instead of direct to the Fed. Cir.] of interference decisions was eliminated.

    2. Usually the job has gone to a present APJ or a PTO Solicitor.

      I assume the odds favor a repeat of this phenomenon, in spite of the public advertisment.

      1. The public availability of the job is per law. However, the requirements basically ensure that you get the people you want.

        Kind of like for a SPE, the requirement is that you have primary signatory authority. Not many people outside the PTO have that.

    3. Paul,

      Your post: 1) You guys that don’t agree with me are all conspiracy theorist. Sure Paul. Sure. 2) The position isn’t as powerful as you think, so no one would even bother with it. As to 1), that is just typical ad hominine of the anti-patent movement. As to 2), the position is a very powerful position. Nice that you don’t think so. For one, I believe they are responsible for hiring new APJs and meeting the statutory deadlines of IPRs.

      Let’s hope that Lee does the right thing and hires a great person that isn’t anti-patent, but to say that a person in this position is not important or their views on patents isn’t important is ridiculous. Not even worth further debate. Just silly nonsense–again.

      1. As a follow up, I have friends who are APJs and no one that has any clue what is going on disputes that this is very influential and powerful position.

            1. NWPA Sure MM. The person that is in charge of hiring is a nobody.

              That’s not what Paul said and it’s not what I said either.

              As a reminder to you, if Lee wanted to “cripple the patent system” all she needs to do is follow Kappos example and turn the spigot back up to 11. Grant a million or two patents a year (exponentionally increasing each year, of course) on the basis of the fact the words in the claim are different from the words in the prior art and let’s see what happens — because it’s a total mystery how that will affect “the patent system”, right?

              1. More blatant misrepresentations…

                (gee, where are the “polite police” for this type of C R P?)

                Malcolm, we have covered many times now that Kappos did not “turn the spigot up to 11.”

                What he DID do was merely state that the mindless rejection of a patent application does not equal quality.

                Forcing an actual examination had the effects of more grants – AND more rejections (more throughput).

                In the real world, that is recognized as an advance.

                The grant rate improved from an unconscionable (and without any meritorious explanation of the precipitous drop) 38% or so back to the historical normal 70% or so (including some of the artificially depressed grants).

                Prof Crouch – PAY ATTENTION.

                You want a better ecosystem?
                DO your Fn job.
                You FEED this C R P by turning a blind eye to it. But when someone else’s feelings are a little bruised with a sharp (AND accurate) word, then it is all “Oh Noes!”

                1. unconscionable 38%

                  Because the rich grifters spending millions of dollars on junky “do it on a computer” applications couldn’t possibly survive with that kind of a grant rate! And they’re the most important people ever, after all. They told us so!

                  Keep the laughs coming, “anon.”

                  1. Your comment here earns a straight F.
                    U
                    really need to drop the baseless “rich grifter” meme on the number one form of innovation MOST accessible to the NON-rich.

                    Funny, how you never seem to remember that – or resolve that inconsistency in your memes.

                2. Kappos did not “turn the spigot up to 11.”

                  Except that he did and you’d have to be blind not to see that.

                  Refresh yourself here: link to patentlyo.com

                  And in case you forgot:

                  David “Dave” J. Kappos … served as the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) from 2009 to 2013.

                  1. Obviously your post here is not in line with reality.

                    The number of applications submitted TO the Office is NOT something the Office controls.

                    Of course you already knew that.

                    And of course, the proper – normed – measure is something that you refuse to address in ANY sense of inte11ectual honesty.

                    But you are just too busy spewing falsehoods and ven0m to see that, or even bother caring.

                  2. The number of applications submitted TO the Office is NOT something the Office controls.

                    Right. When the PTO is swamped with junk applications, it’s supposed to reject them, not rubber stamp them because “historical norm.”

                    But you knew that already.

                  3. Nice strawman.

                    As you should no doubt be aware, I have often stated that ANY rubber stamping is not acceptable – be it “Accept-Accept-Accept” OR “Reject-Reject-Reject.”

                    Your point remains in gross error, and your diatribe against Mr. Kappos is exactly the type of unmitigated C R P that Prof. Crouch should not – but apparently does tolerate.

                    That he wants some type of rather nebulous behavior called “polite” from me, while tolerating your incessant (nearing a Fn decade – per Prof. Crouch’s own lovely link) lack of “polite” behavior garners EXACTLY the type of rebuttals that you see – and will continue to see.

                    Such is eminently fair, n’est ce pas?

  4. Well this one is scary. I hope Lee doesn’t hire a hatchet wo/man to further cripple the patent system. If she is going to come after patents, then this is probably her best chance to cripple us for the next 10-20 years. I wonder if the person will be vetted with Google–my bet is that Google is all over this and that they have already spoken with Obama about it.

    1. Do you know how ridiculous you sound? Everything going on in the world and you think Google has a direct line to POTUS to discuss something that – in the grand scheme of things – is worthless?

      1. >>Everything going on in the world and you think Google has a direct line >to POTUS to discuss something that – in the grand scheme of things – is >worthless

        Do you have any idea how naïve you sound? I’ve posted on here a number of articles about the influence Google has had over the president and Congress. For example, Lee was vetted with a group of business people including Google at the White House prior to her appointment.

        Read the job description. This person could have a profound affect on patent law. (Or none at all).

        Money, money, money is never “worthless” in our material world. Google wants to keep their monopoly.

            1. If you pick a judge who agrees with your world view, s/he will rule the way you want.

              It’s also handy to make a voodoo doll of the judge using some of the judge’s actual hair. You know, just in case.

                1. “miss”

                  Hmm, that implies a total ban and only would happen if Malcolm were not capable of posting in an inte11ectually honest manner at all.

                  Maybe DanH (a notorious cheerleader of Malcolm’s) should pay attention to what I actually wrote, since I did not call for a total ban (or even told the wrong people to just “s h u t u p”) LOL – remember that, DanH?

                  1. Hmm, that implies a total ban…

                    No, not necessarily. Some people will simply go away when they’re told they’re not welcome, e.g., via an IP address block.

                  2. ..and some people are tougher than that, eh?

                    (or care more about the law and about the rampant propaganda that is allowed to fester)

                    😉

                  3. As anon’s posting has increased in volume, the number of replies to his posts has sharply declined. Further, and more importantly, the number of new posters on this site has declined as well.

                    The good professor is caught between a rock and a hard place with anon.

                    Anon will just keep changing his IP to evade any attempt to block him. If the good professor deletes the posts under the name “anon”, anon will just use a variety of different names and will vary his tone/style AND change his IP with regularity. The problem will get worse rather than better.

                    On the upside, as he is comfortable with his victory and *appears* to have settled on a single name, its a lot easier to ignore him than if he changed strategies and you had to deal with dozens of different names with different tones and styles.

                    Pretty sad stuff.

                  4. tsr,

                    LOL – what a hypocrite – as if your own moniker has not changed of late….

                    And further, I have only used the single moniker (even if you do not believe it) since the Prof. kindly asked me to use only one.

                    So your commetn of “anon will just use a variety of different names and will vary his tone/style AND change his IP with regularity” is simply false. That I have repeatedly told you this, and your continued insistence on saying something that you know to be false says something (rather unflattering) about you.

                    In fact, the one who screamed and whined loudest about multiple monikers is the very one who runs rampant with an army of them over at PatentDocs. Dr. Noonan even issued a “transparency challenge” to Malcolm there.

                    As to replies deceasing while my volume increasing, I don’t think you know what you are talking about. My volume may increase or decrease slightly, but has remained fairly constant, and the LACK of responses should tell you a different story.

                    Note that I am ASKING for people to participate in actual dialogues of law and facts.

                    Several times of late I have posted simple and direct questions that go to the heart of several canards routinely foisted on the readers here (i.e. the definitions of 35 USC 100).

                    When I reply to those who ride their Merry Go Round Windmills and point out flaws (or outright lack of) critical thinking, and there is NO answer, well, that itself IS an answer.

                    That these self sAme ones barrage nearly every thread with the sAme C R P without taking into account he counter points presented should tell you that these sAme ones are NOT interested in any semblance of dialogue and ONLY want to advocate with their drive-by monologues.

                    “Polite” (and mindless) chatter that serves only to create an ec(h)osystem is not only not healthy, it is the acceptance and making the appearance of truth from the L1Es being told.

          1. Ned,

            Take a look at some the different Article I created administrative agency “judicial” bodies and you will see a range of independence of that function and the head of that administrative body – the USPTO is way on the LOW side of the “independence” spectrum.

            I would add that this fact is something you might consider if you take your real-life separation of powers case further.

                1. You know Marbury v. Madison was all about the appointment for a fixed term of a Justice of the Peace for DC. The Supreme Court ruled that these “courts” were Article I courts. But, no one ever questioned the power of Congress or the President to authorize the appointment of these kind of “judges” in the in the territories. In the states themselves, the states appointed these kind of judges all the time. There seems to have developed an idea that Article III judges were only required within the borders of States. I also assume that these judges, like state court judges, conducted jury trials just like any other “state” or common law court.

                  But it does make a difference if the so-called court is actually part of the executive branch. I think this undermines the separation of powers.

                  1. My spectrum question at 2.1.2.1.2 was solely within the domain of administrative agencies.

                    Granted, I did not make that distinction initially, but I make it now.

                    I did not mean to drag into the discussion any state/federal question – this is all about the relative independence – and accompanying veracity of judgment – of what is commonly referred to as the Fourth Branch of the government.

                  2. anon, it might be that congress can create special, non Article III courts to hear special matters provided they not be part of the executive branch, and provided that they not be the stuff where jury trials are required by the 7th Amendment. Therefore, if the issue arises under Federal Law and is the type of issue litigated at common law where jury trials were afforded, like patent validity or infringement, I think the Judaical Power clause seems clear that the special court must be an Article III court.

                  3. anon, think the issue with administrative agencies was whether they were a permissible carve out from the executive. As to whether they can deal with disputes within the scope of their grant of authority, they can to the extent the executive could under the public rights exception.

                  4. Ned,

                    There is a spectrum of administrative agencies created in the wave of the “Fourth Branch.”

                    Within THAT spectrum, there is a range of independence of ANY of THOSE granted judicial (or even semi-judicial) roles.

                    Within THAT spectrum, the independence of the Patent Office “judicial” role is on the very LOW side of true independence.

                    Why are you struggling so mightily with this concept?

                    This is a well-known concept within administrative law – yet you do not want to accept the point her and want to talk about something else… (something that I am just not talking about)

                  5. Anon, the PTO is part of the Executive Branch. It is not a legislative agency independent of the Executive where its managers are appointed to fixed terms and cannot be removed even by the president.

                  6. …legislative agency…?

                    Ned, you appear to not understand the basics of administrative law.

                    I am a firm believer that anyone dealing with the “Fourth Branch” and any administrative agency should have a modicum of understanding of Admin Law.

                    Your comment about “legislative agency” is just bizarre and quite outside of the “Fourth Branch” and thus, continues to be not related to my comment. At all.

                  7. anon, I think we are talking past each other again. You are talking administrative law. I was referring to the structure of our government.

                  8. Ned,

                    You appear to miss the point (again).

                    I am not talking past you – I am trying to get you to not talk past me.

                    Administrative law is about a certain portion of the structure of our government – it also happens to be on point to the administrative agency that is the USPTO. The point being that there are OTHER administrative agencies that have different relationships with those administrative agency “judicial” functions, and those OTHER administrative agencies enjoy different (read that as more independence = = more objectivity = = more trust in that objectivity).

    2. This position is definitely a political appointee that must be approved by the Secretary of Commerce. Good-or-bad, that is the way that our Federal Government agencies work. However, the USPTO has done well here by widely publicizing the position and seeking candidates — something that is not done for many political appointments.

  5. For qualifications, the USPTO requires senior level management and technical experience in the areas of patent law and management. This includes both a technical degree and a law degree

    When does a degree qualify as a “technical” degree?

    My brother has a B.A. in business and he uses rules to determine how much to charge his customers. Surely that suffices.

    1. I always found it odd that the PTO would grant so many patents on business methods yet not recognize a business degree as “technical” enough to get a reg number. (The same could be said for not recognizing math when they grant patents on cryptographic methods)

      Perhaps this is why so many bad patents come out of that class (setting aside Alice issues and only considering 102/103) — they categorically exclude examiners/agents whose primary training is in business. No wonder they have difficulty recognizing old-as-time economic and business practices when dressed up with processors and receivers.

      1. I always found it odd that the PTO would grant so many patents on business methods yet not recognize a business degree as “technical” enough to get a reg number.

        Not to mention patents on identifying available real estate. Or managing a bingo game. Or driving a car. Or animating a cartoon character. Or playing with a cat.

      2. It is a good point Jane. Another alternative would be to send some of the examiners off to business school at night.

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