Goodbye ARC and Hello CJP: USPTO Creates Interim Process for PTAB Decision Circulation and Review

On May 26, 2022, the USPTO issued guidance on an interim process for PTAB decision circulation and internal PTAB review. The guidance replaces the PTAB’s previous internal decision review committee, referred to as the AIA Review Committee (ARC), with a Circulation Judge Pool (CJP).  The CJP is charged with reviewing AIA institution decisions, AIA final written decisions, and some categories of ex parte appeal decisions.  Highlights of the CJP review process include:

• Each decision reviewed by at least 2 CJP Judges
• CJP open to any non-management PTAB Judge
• Eight PTAB Judges on CJP, each serving for one-year terms
• CJP comments are suggestions and not binding on the panel

The CJP is chosen to represent the entire pool of judges, including those with diverse technical backgrounds and professional experiences. The PTAB Executive Management consults with the Lead Judges in selecting Judges to serve on the CJP.

The CJP has regular meetings with PTAB Executive Management to discuss potentially conflicting panel decisions and general areas for potential policy clarification. For policy clarification and consideration purposes, the PTAB Executive Management may discuss certain issues with the Director.

Modeled after the Federal Circuit’s ten-day circulation process, CJP review is intended to provide feedback on decisions prior to issuance, such as potential conflicts and inconsistencies with relevant authority. However, unlike the Federal Circuit’s process, which allows reviewers to hold a decision from issuance, the panel retains authority to issue a decision regardless of CJP feedback. Thus, the panel has final authority for their decision and determines whether to incorporate suggestions from the CJP.  The CJP may only identify notable decisions to PTAB Executive Management for consideration of post-issuance review. “[T]he interim process makes clear that the Director is not involved, pre-issuance, in directing or otherwise influencing panel decisions.”

This is an interim process, in use “until the USPTO receives stakeholder feedback and operationally formalizes the process.” Questions can be submitted by email to Trials@uspto.gov.