Coming out on the other side after more than six years since the America Invents Act was instituted, the Patent Trial and Appeal Board is stronger and ready to focus on specific, complex issues including real parties-in-interest (RPIs) and the use of nonpatent literature. “The board procedures and resources are operating very well,” said Erika Arner, a Finnegan partner and president of the PTAB Bar Association. “Really now, we can focus on more substantive issues.”
RPIs will be a key issue of discussion at the upcoming PTAB Bar Association annual conference. “It’s something the [Federal Circuit] is spending a lot of time on and the board is spending a lot of time on,” Arner said. “That is certainly a big issue in PTAB trials, and an unsettled one.” The PTAB Bar has submitted suggestions on the USPTO’s proposal for a new process to amend patents in AIA reviews, and remains focused on issues like estoppel, as its scope shifted following a recent Supreme Court decision. Demonstrating its commitment to improving process, the PTAB Board recently created the Precedential Opinion Panel, known as the POP, which is already hearing arguments and seeking additional cases to pursue.
The PTAB Bar has been working on its own initiatives, creating a women’s committee and building up its membership on the appellate side. “The association, while focusing on the substance of practice at the PTAB, has also been actively working with our committees to promote diversity and inclusion among PTAB practitioners,” Arner said.