USPTO issues final rules on pre-issuance internal circulation and review of PTAB decisions
To further enhance our transparency regarding United States Patent and Trademark Office (USPTO) processes and procedures, today we announced a final rule in the Federal Register governing pre-issuance internal circulation and review of decisions within the Patent Trial and Appeal Board (PTAB).
On October 5, 2023, we issued a Notice of Proposed Rulemaking (NPRM) seeking public input on rules governing pre-issuance internal circulation and review of decisions within the PTAB. We concurrently issued a new Standard Operating Procedure (SOP4) to replace the prior interim process for PTAB decision circulation and internal PTAB review.
Based on the comments and support received regarding the NPRM, we are moving forward with the rulemaking process. The final rules formalize current USPTO procedures within SOP4, which make clear that PTAB judges are to exercise their judicial independence and that the Director is not involved in directing or otherwise influencing PTAB panel decisions prior to issuance. The rules further provide that PTAB management and officers, or employees of the USPTO external to PTAB, are not involved in panel decision-making unless a panel member has requested input. Adoption of any requested pre-issuance feedback is solely within the discretion of the panel.
“To promote the integrity of the IP ecosystem, we must have clear, consistent, and open decision-making by independent judges” said Under Secretary of Commerce for Intellectual Property and Director of the USPTO Kathi Vidal. “This rule package is one of our many initiatives to protect the IP and innovation ecosystem both procedurally and substantively, in the U.S. and across borders.”
The final rule is effective on July 12, 2024.
SOP4, which provides a more detailed explanation of PTAB's internal circulation and review procedures, will remain in effect.
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