Patent Office’s Vidal Mulls Replacing Precedential Opinion Panel

US Patent and Trademark Office Director Kathi Vidal is considering a series of changes to the office’s director review process, including replacing its long-standing precedential opinion panel, or POP.

In an interview with Bloomberg Law, Vidal said one possibility is the creation of an “error correction panel” that would take the place of POP and address instances where the Patent Trial and Appeal Board reaches a wrong decision.

The current panel operates on the director’s discretion and its primary members also usually include the commissioner for patents and the PTAB’s chief judge.

POP, however, has largely been sidelined since the advent of director review of PTAB decisions—a power the US Supreme Court granted in its 2021 US v. Arthrex decision.

The agency in July sought public comment on various administrative review processes, including POP. In response, intellectual property stakeholders raised concerns about the existing processes—which generally predate Vidal’s tenure—alleging a lack of clarity and transparency.

Vidal, who began her tenure as the patent office’s director in April, said that she initially used the director review process for error correction, as well as big-picture questions she felt needed to be resolved.

“As I’ve reflected on it, I feel like it may be better to separate out the error correction from where we really need to address an area of the law and provide clarity and certainty for the public and for the PTAB,” she said.

Proposal Not Yet Formalized

Although the office has yet to fully draft a proposal for changes, Vidal said her goal is to have one entity considering error correction, and to have the option of initiating a director review only when it “rises to the next level,” such as when PTAB decisions conflict or when issues raised need more clarity.

The director said POP currently has initial jurisdiction over PTAB decisions, and she has to affirmatively take them over to initiate the director review process, and the panel in its current state doesn’t entirely address error correction.

Vidal aims to issue new guidance regarding any changes, saying that the plan is to evolve the director review process through a formal rulemaking.

“During rulemaking, the public will have additional chances to comment,” she said. “So we’ll have additional chances to live with the new system and figure out if that’s the right balance in terms of who does what, and in terms of making sure that the public is able to do error correction as well as that we’re being clear with our decision making.”

She also highlighted the heavy workload under her initial approach to director reviews and said addressing that was one of her goals.

“Part of this is not only what is the best process but what’s going to be sustainable in the future.”