On Tuesday, August 25, the United States Patent and Trademark Office (USPTO) opened for public comment a proposed pilot program for inter-partes review proceedings (IPRs), one of the patent post-grant review proceedings made available under the Leahy-Smith America Invents Act. IPR proceedings have two phases: the institution phase and the trial phase. Currently, during the institution phase, a panel of three Administrative Patent Judges (APJs) reviews the IPR petition and decides whether some or all of the patent claims challenged in the petition should proceed to the trial phase. The trial phase is then conducted by the same three-APJ panel.
The USPTO’s proposed pilot program will change the composition of the institution and trial-phase panels. First, it will limit the institution phase to a single APJ. Then, after the institution decision has been made, the trial-phase panel will be comprised of the institution-phase APJ and two other APJs who were not involved in the institution decision. The USPTO cites increased efficiency as the main goal of the pilot program. But presumably the USPTO also hopes the new program will alleviate concerns about actual or perceived bias during the IPR process.
The USPTO will be soliciting public comments on the proposed pilot program through October 26.