Title 37—Patents, Trademarks, and Copyrights--Volume 1
PART 43—DECISION CIRCULATION AND REVIEW WITHIN THE PATENT TRIAL AND APPEAL BOARD
§ 43.1   Scope.
This part sets forth procedures for the pre-issuance circulation and review within the Patent Trial and Appeal Board of draft panel decisions rendered in proceedings pending under parts 41 and 42 of this chapter and sets forth the controlling legal authority, policy, and guidance applicable to the decisions of the Board.
§ 43.2   Definitions.
The following definitions apply to this part:
Board means the Patent Trial and Appeal Board.
Decision means any decision, order, opinion, or other written work product intended for entry into the record of a Board proceeding.
Deputy Director means the Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office, or an individual serving as Acting Deputy Director.
Director means the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, or an individual serving as Acting Director or performing the functions and duties of the Director.
Commissioner for Patents and Commissioner for Trademarks mean the positions defined in 35 U.S.C. 3(b)(2), or an individual acting in the capacity of one of those positions.
Issuance means the entry of a decision into the record of a Board proceeding.
Management Judge means the Chief Administrative Patent Judge, the Deputy Chief Administrative Patent Judge, a Vice Chief Administrative Patent Judge, a Senior Lead Administrative Patent Judge, a Lead Administrative Patent Judge, including individuals who serve in these positions in an acting capacity, or any other Administrative Patent Judge who, as part of their duties, serves as the rating official of one or more Administrative Patent Judges.
Office means the United States Patent and Trademark Office.
Panel means the members of the Board assigned to a particular proceeding, or an aspect thereof.
Proceeding means an appeal or contested case under part 41 of this chapter, or a proceeding under part 42 of this chapter.
§ 43.3   Limits on Director's and other individuals' involvement in panel decisions.
(a) Prior to issuance of a decision by a panel, the Director, Deputy Director, Commissioner for Patents, and Commissioner for Trademarks shall not communicate, directly or through intermediaries, with any member of the panel regarding the decision.
(b) The prohibition of paragraph (a) of this section shall not apply to any individual in paragraph (a) who is a member of the panel. When sitting as a member of a panel, the Director or other individual listed in paragraph (a) is a coequal member of the panel and exercises no review authority over the proceeding prior to the issuance of the panel's decision on the merits.
(c) Nothing in this section shall prevent the Director or delegate from communicating with a panel as to resource needs or the procedural status of any proceeding pending before the Board.
(d) The Chief Administrative Patent Judge or delegates of the Chief Administrative Patent Judge shall designate panels of the Board on behalf of the Director. The Chief Administrative Patent Judge or delegates of the Chief Administrative Patent Judge shall only panel or repanel proceedings in accordance with public Board paneling guidance. The Director may issue generally applicable paneling guidance to be applied to proceedings before the Board. The Director shall not direct or otherwise influence the paneling or repaneling of any specific proceeding prior to issuance of the panel decision. When reviewing or rehearing an issued panel decision, the Director may direct the repaneling of the proceeding in a manner consistent with public Board paneling guidance through an Order entered into the record.
§ 43.4   Limited pre-issuance management and Office involvement in decisions.
(a) Except as requested pursuant to paragraph (b) of this section or permitted under paragraph (d) or (e) of this section, prior to issuance of a decision by the panel, no Management Judge or an officer or employee of the Office external to the Board shall initiate communication, directly or through intermediaries, with any member of a panel regarding the decision.
(b) Any individual panel member may request that one or more Management Judges or an officer or employee of the Office external to the Board provide input on a decision prior to issuance. The choice to request input is optional and solely within the discretion of an individual panel member.
(c) It is within the sole discretion of the panel to adopt any edits, suggestions, or feedback provided to the panel by a Management Judge or an officer or employee of the Office external to the Board as part of a review requested under paragraph (b) of this section. The panel has final authority and responsibility for the content of a decision and determines whether and how to incorporate any feedback requested under paragraph (b).
(d) The prohibition of paragraph (a) of this section shall not apply to any Management Judge who is a member of the panel. When sitting as a member of a panel, a Management Judge is a coequal member of the panel.
(e) Nothing in this section shall prevent a Management Judge from communicating with a panel as to resource needs or the procedural status of any case pending before the Board.
§ 43.5   Review of decisions by non-Management Judges.
If the Office establishes procedures governing the internal circulation and review of decisions prior to issuance to one or more designated members of the Board:
(a) No Management Judge or an officer or employee external to the Board shall participate directly or indirectly in any such review and the reviewing non-Management Judges shall not discuss the substance of any circulated decision with a Management Judge prior to issuance of the decision, except with a Management Judge who is a member of the panel; and
(b) Any edits, suggestions, or feedback provided to the panel pursuant to such circulation and review are optional and in the sole discretion of the panel to accept. The panel has final authority and responsibility for the content of a decision and determines whether and how to incorporate any feedback provided.
§ 43.6   Controlling legal authority; no unwritten or non-public binding policy or guidance.
Notwithstanding any other provision of this part, all decisions of the Board are expected to comport with all applicable statutes, regulations, binding case law, and written Office policy and guidance applicable to Board proceedings. There shall be no unwritten Office or Board policy or guidance that is binding on any panel of the Board. All written policy and guidance binding on panels of the Board shall be made public.