Structural Bias at the PTAB: No Dissent Desired

By Gene Quinn
June 6, 2018

On March 7, 2018, I sent a Freedom of Information Act (FOIA) Request to the United States Patent and Trademark Office (USPTO). This was the second of three FOIA Requests I send in the month of March. The first and third request remain outstanding, and late, although the Office has contacted me and asked me to remain patient. See PTO ignores FOIA.

This March 7, 2018, request was for:

1. Any document (including printed, handwritten or electronic) that contains any information, discussion or mention relating to Administrative Patent Judges receiving credit toward their production goals (or quota) for writing a dissenting opinion. This should be interpreted to include (although not be limited to) document(s) (including printed, handwritten or electronic) that include information, discussion or mention of the circumstances an Administrative Patent Judge will receive credit toward their production goals (or quota) for writing a dissenting opinion.

2. Specifically, it is my understanding that one or more memos to Administrative Patent Judge(s) explain that credit toward production goals (or quota) does not include dissenting opinions unless prior permission is sought and the request to dissent approved. I specifically seek any memoranda or document (including printed, handwritten or electronic) that discusses this policy or any document (including printed, handwritten or electronic) that might refute the existence of such policy.

Please note that electronic documents in this request are intended to include (although not be limited to) e-mail communications.

The final response I received from the Office can be seen here.

This FOIA response confirms that dissents and concurring opinions are not desired by PTAB supervisors. In fact,  Administrative Patent Judges (APJs) of the Patent Trial and Appeal Board (PTAB) must justify to the Vice Chief Judge why a dissent or concurring opinion should count toward production goals, otherwise the work performed does not count. In other words, without permission of the Vice Chief Judge a dissent or concurrence by an APJ is done on the personal time of the APJ.

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The substance of the relevant document, an e-mail sent on May 7, 2009, reads:

Please note that, effective immediately, if you would like a dissent, concurrence, or remand to be considered towards your productivity totals, you must submit a request. The form is attached and may be used retroactively for cases prior to this date. For cases after this date, it must be submitted to your Vice Chief Judge within one week of mailing of the dissent, concurrence, or remand in order to be considered.

Concurrences, dissents, and remands are not normally efficient mechanisms for securing the “just, speedy, and inexpensive” resolution of an appeal before the Board. (Bd. R. 1). As indicated in the PAPs, a productivity credit is not automatically earned for a concurring opinion, dissenting opinion, or remand. Accordingly, justification is required to explain the need to undertake the extra work and occasion the extra delay in order to ensure efficient and proper utilization of our resources. Further, any credit given for a concurring opinion, dissenting opinion, or remand will be commensurate in scope with the justification provided and the scope of the extra work.

Obviously, a policy that does not count dissents and concurring opinions toward production goals unless approved by the Vice Chief Judge has a chilling effect. Whether by design or by result, such a policy has the effect of squelching dissent, and even concurring opinions for that matter.

You get what you incentivize. This policy provides a disincentive to dissent, or even provide contrary views that might ordinarily appear in a concurring opinion.

Worse, this policy is not exactly the way to encourage judicial independence and exposition of differing opinions among panel members. Indeed, the policy almost certainly violates the requirements of the Administrative Procedure Act (APA), which requires judicial independence.

This confirmation that dissents and concurring opinions are strongly disfavored is hardly shocking to anyone familiar with the operation of the PTAB. Although a panel of three APJs is assigned to decide cases, in reality cases are nearly uniformly decided by a single APJ, with the other two APJs merely rubber stamping the decision of the APJ who will be responsible for writing the opinion.

This FOIA production simply explains why there is such unanimous agreement among panel members at the PTAB. You’d be very likely to agree with whoever is assigned to write the opinion too if you didn’t know until after the fact whether your time and effort to dissent or concur would be counted as work or a donation of time to the federal government.

Of course, a policy that discourages dissent deprives the parties of true panel consideration, and robs the Federal Circuit of the ability to be informed by the contrary views of an APJ that disagrees with the majority.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 31 Comments comments.

  1. Appearance of ... June 6, 2018 10:26 am

    So the goals are “just, speedy, and inexpensive”.

    Normally I would say “pick two”, but even that doesn’t work here. If you want either “speedy” or “inexpensive”, then “just” has to go.

    However, if you want “speedy and inexpensive”, may I suggest rolling dice?

  2. Anon June 6, 2018 10:52 am

    securing the “just, speedy, and inexpensive”

    Reminds me of the old Program Management paradigm, and the “pick two of the three” options.

    Justice appears to be that third leg that is left out.

  3. Anon June 6, 2018 10:57 am

    Further to your point, the “not counting” work product DEEMS that work product as somehow “non-essential.”

    Last I checked, an essential part of an independent judiciary DOES include the – as necessary (and necessary decidedly being in the sole discretion of the “judge” and not the “boss” of the “judge”) – dissent or concurrence.

    The “three legs – pick two” OPTION is not a paradigm that should apply – nor should be allowed to apply – in any type of adjudicatory set-up (even non-Article III set-ups).

  4. CP in DC June 6, 2018 11:00 am

    Although a panel of three APJs is assigned to decide cases, in reality cases are nearly uniformly decided by a single APJ, with the other two APJs merely rubber stamping the decision of the APJ who will be responsible for writing the opinion.

    So true. When arguing a case, immediately one can recognize who has been assigned and is writing the case. That single APJ asks the questions, wants answers, and knows the record. In several instances that I’ve argued, the other two don’t ask ONE question. Inevitably, the opinion comes out written by that APJ and the other two just go along, regardless of merit or reason.

    The process is such a farce. I can win on appeal, but I’d rather have a well considered opinion that includes all points of view. The PTO knows that any dissent would encourage an appeal to the Federal Circuit. The PTAB once had a stellar record at the Fed Cir with over 90% affirmance rate, now it’s more around 50% and rapidly declining.

    Of course, the PTAB counts on cost that prohibits many from appealing their PTAB decisions, which would only further reduce that rate.

  5. Josh Malone June 6, 2018 11:35 am

    Note that this policy is from 2009, well before AIA post grant proceedings began. Which raises an important point. The 5,000+ issued patents reviewed by the PTAB were treated like examinations or appeals of examination rejections. The PTAB does not acknowledge any distinction between an application for a patent and the patent itself. The experience of the APJ’s and the procedures that have been adopted treat the patent owner as if he is applying for a patent, rather than he already has one. There is no presumption or expectation that the patent owner should keep his issued patent. The original rulemaking and staffing failed to appreciate the gravity of recalling an issued patent versus denying a patent in the first place. Even Justice Breyer expressed concern about the PTO reviewing patents that had been in effect for a decade and relied on for billions of dollars in investment. The PTAB treats is just like an appeal of a denial of a patent in the first instance.

    Except of course it is really much worse. In post grant proceedings there is a competitor with high powered lawyers and experts to confound the PTO staff. And there is only one chance for the patentee – no response to the rejection, no RCE, nothing. Your patent published, was granted, and product commercialized and there is nothing you can do to “fix” the alleged defects. Just imagine if the PTO rewrote the MPEP to make non-final rejections final and to eliminate RCE and continuation. We wouldn’t have a useful patent system….and we don’t.

    The AIA implementation turned our patent system upside down. When the patent is published and granted is when it must be protected and defended. Yet the AIA did the exact opposite, keeping all of the scrutiny applied during examination while opening it up to third party attacks and stripping the procedural tools and appeals afforded an applicant.

    5,000 patents! The most valuable patents. Billions of dollars of investment. Thrown into a tribunal and treated like trash. The infringer lobby gets the expected results. Submit 5,000 patent applications, permit extensive opposition, and they will be rejected on the first office action. By design or by mistake, it is no surprise that the PTAB is killing 85% of the most valuable patents in the United States.

    Eliminating BRI is a small step in the right direction. Permitting amendment is not helpful at all. It perpetuates the problem of treating issued patents the same as applications. The best answer is to repeal AIA trials and put the PTO back to work promoting the progress of useful arts by securing to inventors the exclusive right to their discoveries. We have real courts for a reason. Until then, Director Iancu should implement the further safeguards submitted by 261 industry professionals. https://www.ipwatchdog.com/2018/05/07/ptab-reform-urgent-request-independent-inventors

  6. Night Writer June 6, 2018 11:37 am

    This is pretty old news. But, I agree that this is a big problem. I think if we are stuck living with the PTAB that the only answer is to make them ALJs so that they are autonomous.

    Just think ALJs and a new 101. That would make me optimistic.

  7. Anon June 6, 2018 12:44 pm

    Josh @ 5,

    As I have (hinted ?) stated previously, the separate legal action of the institution decision point is a point at which a takings occurs.

    Well before any decision on the merits, all one has to do is weigh the “bundle of sticks” of a granted patent in comparison to a patent for which an institution decision has been rendered affirmatively.

    The delta is what has been taken. Then, once that is understood, look again at Takings law and see that the traditional protections afforded to instances in which takings may occur are absent in the AIA mechanism.

    However, this was the (right) question that has yet to be asked of the courts – and certainly was missed by the late Ned Heller, with whom I tried to impress upon this critical aspect of property.

  8. EG June 6, 2018 1:24 pm

    Hey Gene,

    Great post. So not only is there “panel stacking,” and no code of conduct on “conflicts,” but no “concurring or dissenting opinions are allowed” if you want to get credit. How PTAB can accept such an outrageous environment as being anything other than violating the APA is beyond words to express.

  9. Software Inventor June 6, 2018 1:44 pm

    Mr. Quinn: Isn’t this proof of the the unconstitutional practices that Judge Gorsuch expressed concern in his Oil States dissenting opinion? Thank you.

  10. Bemused June 6, 2018 2:01 pm

    “just, speedy, and inexpensive” resolution of an appeal before the Board”

    Six years of the patent death squads coupled with serial filings of petitions, lack of any real estoppel, etc, etc, has definitively proven that the PTAB is certainly neither “just” nor “inexpensive”. As regards “speedy” I guess that is one benefit (analogous to being quick-marched to the gallows).

  11. valuationguy June 6, 2018 2:38 pm

    Josh,
    I agree with you that the previous ‘presumption that the patent is valid’…required by the federal courts is nowhere evident in the PTO post-issuance procedures.

    Just the fact that federal courts now regularly put hold on district cases in light of IPRs or re-exams is (imo) a blatant violation of that STILL EXISTING PRECEDENCE set by the SCOTUS….as it ignores the requirement that Judges consider patents as presumed valid until canceled.

  12. Name withheld to protect the innocent June 6, 2018 2:47 pm

    What this simply means is that, in essence, if you go to the Board on an appeal, your appeal is going to be decided by a single APJ. While 3 APJs put their names on the Decision, it is only the person writing the Decision who really matters since it is extremely unlikely for both of the other APJs to dissent.

    This being the situation, why are the USPTO/PTAB going through the motions of giving the illusion that appeals are being considered by 3 APJs? Just make a single APJ consider the appeal and be done with it. There would be no functional difference between a single APJ considering an appeal and what is being done now.

  13. A Rational Person June 6, 2018 6:13 pm

    Name withheld@12 If there is “no functional difference between a single APJ considering an appeal and what is being done now,” then I think a good case can be made that the USPTO/PTAB is no complying with the “structural due process requirement” of the Fifth Amendment. And I would suggest that Gene’s article makes a strong case that in fact the USPTO/PTAB is violating the “structural due process requirement” of the Fifth Amendment with respect to taking away patents from patent holders.

  14. Anon June 6, 2018 8:28 pm

    ARP,

    How does one or three actual “judges” per case implicate your due process concern?

  15. Name withheld to protect the innocent June 7, 2018 9:03 am

    I was curious so I looked it up. Pre-AIA 35 USC 6 does not require 3-member panels. However, post-AIA 35 USC 6(c) requires a 3-member panel (“Each appeal, derivation proceeding, post-grant review, and inter partes review shall be heard by at least 3 members of the Patent Trial and Appeal Board, who shall be designated by the Director. “) Depending upon what the definition of “heard” is, it could mean that the current system at the PTAB is in violation of 35 USC 6. That being said, it would be a tough argument to make. Regardless, it shows the disdain the USPTO has in providing a fair process when only 1 APJ really hears the appeal and the other 2 APJs merely rubber stamp what was written.

    To be fair, I have seen appeals with dissents so this means that there are some APJs who take their job seriously.

    I haven’t seen the data posted in awhile (buried behind paywalls now), but it would be a great article to see the percentage of dispositions, by APJ who wrote the decision, posted. We can assume that the decision rendered by the Board can be deemed a proxy for the decision of the APJ who wrote it. Pick an art unit (2100?) and show the dispositions for each APJ over a 5-10 year period. Ideally, the numbers should be consistent from year to year with no persistent outliers. However, if (for example) a particular APJ has a consistently high affirmance rate over a long period of time, we can deduce that this particular APJ has a systematic bias against applicants. One could randomize the information by using letters (e.g., “A, B, C, D, … X, Y”) instead of names.

    I suspect some very interesting results could be gleaned from such an exercise.

  16. A Rational Person June 7, 2018 10:32 am

    Anon@14,

    35 USC 6(c) states the following:

    (c) 3-Member Panels.—
    Each appeal, derivation proceeding, post-grant review, and inter partes review shall be heard by at least 3 members of the Patent Trial and Appeal Board, who shall be designated by the Director. Only the Patent Trial and Appeal Board may grant rehearings.

    So, if the USPTO has effectively set up a system where IPR cases are being heard by only 1 member of the PTAB, the USPTO would appear to not following the procedure set for in 35 USC 6, and, therefore, violating the patent holder’s right to “structural due process” under the 5th Amendment.

    Whether there are one or three actual “judges” per case matters under 35 USC 6.

  17. A Rational Person June 7, 2018 10:58 am

    In post above, should read:

    So, if the USPTO has effectively set up a system where IPR cases are being heard by only 1 member of the PTAB, the USPTO would appear to not be following the procedure set forth in 35 USC 6, and, therefore, violating the patent holder’s right to “structural due process” under the 5th Amendment.

  18. A Rational Person June 7, 2018 11:10 am

    Name withheld@15,

    Sorry, I didn’t see your post when I made my post @14 in response to Anon.

    Also, whether there have been some dissents in some PTAB cases, the problem appears to be that there is a USPTO policy discouraging the writing of such dissents, and such a USPTO policy could be considered an attempt by the USPTO to effectively set up a procedure that violates 35 USC 6 and violates a patent holder’s rights to procedural due process under the 5th Amendment.

    To fully appreciate the problem described by Gene, consider the ramifications if a U.S. Court of Appeals unilaterally adopted a similar policy with respect to dissents and concurring opinions.

  19. Anon June 7, 2018 11:33 am

    Depending upon what the definition of “heard” is, it could mean that the current system at the PTAB is in violation of 35 USC 6.

    (reiterated by ARP).

    Sorry, but no – “heard” only means what the word means, It does NOT necessitate that the decision must be made with contributions from all panel members.

    Your attempt to change the meaning of “heard” with a notion of “effectively heard” just does not reach. “Effectively heard” remains “heard” and remains “heard” by all present panel members regardless of whether or not one – or more – panel members are tasked with writing up the results.

    You would need the law to be written differently in order to reach what you think the law should say.

    (If you want to argue that the AIA was written abysmally, I will agree with you – but that’s a different conversation, one that does not reach your view at post 13)

  20. A Rational Person June 7, 2018 7:57 pm

    Anon@19,

    “Sorry, but no – “heard” only means what the word means”,

    Sorry, but no. For example, I doubt that a District Court Judge or a Court of Appeals would find that “heard by a Kangaroo court” or, “heard by a Kangaroo panel of PTAB judges” would meet the definition of the word “heard” in the statute. Implied in any concept of being “heard” under American jurisprudence is the idea of a “fair hearing”. The question is: “In light of the directions from the USPTO to the PTAB panels” with respect to concurring and dissenting opinions are patent holders receiving a fair hearing, i.e., are the patent holders’ rights to “structural due process” being maintained.

  21. Name withheld to protect the innocent June 7, 2018 9:02 pm

    Your attempt to change the meaning of “heard” with a notion of “effectively heard” just does not reach. “Effectively heard” remains “heard” and remains “heard” by all present panel members regardless of whether or not one – or more – panel members are tasked with writing up the results.
    What are you talking about? I didn’t put forth a meaning of “heard.” I honestly don’t know what it means in the context of the statute, so I cannot be attempting to change the meaning of “heard.” I’m just putting forth the suggestion that depending upon the meaning of heard, that 35 USC 6 could be violated.

  22. Lost In Norway June 8, 2018 5:17 am

    I shouldn’t be surprised anymore… I really shouldn’t. I have just been away from home too long, I guess.

    But anyone else see this is as a labor issue as well? I mean, if you are told to do a job, do your job, but don’t get paid unless you vote the way that the powers that be demand that you vote, isn’t that a labor law violation of some sort? Not like PTAB cares much, but still…

  23. Anon June 8, 2018 7:54 am

    ARP and Nwtpti,

    You both are operating under a fallacy of wanting to use the word “heard” to mean more than what it means.

    First, by ADDING and imposing a “Kangaroo court” item, you expand the single word to include the totality of the proceedings – there, the fault would NOT be in whether or not the word “heard” is in play, but rather, what else is (or is not) going on.

    Second, you claim to NOT be changing the meaning of the word – just as you ARE trying to change the meaning of the word. By NOT putting forth a meaning and attempting to read 35 USC 6 differently than the PLAIN meaning of the word, you ARE trying to change the plain meaning. You attempt to make an implication by implying that the meaning of the word MAY change to include the point presented (thereby implicating due process).

    Both attempts are logical fallacies. You both simply must accept that the meaning of the word is direct and simple. If you want to tie to some “due process” issue, you need something else.

    Lost in Norway,

    Even more egregious than a “labor issue,” is the TYPE of labor issue at hand: judicial reckoning is supposed to be neutral and independent – by its nature.

    All this goes to show is what I long ago supplied: administrative agencies may have a spectrum of separateness and true neutrality of its adjudicatory functions, and the USPTO has long been at the bottom of that spectrum. Congress should have known this when they crafted the AIA. And if you want to be skeptical, you can note that they DID know this (and acted anyway).

  24. Name withheld to protect the innocent June 8, 2018 1:12 pm

    You both are operating under a fallacy of wanting to use the word “heard” to mean more than what it means.
    I haven’t defined it. You haven’t defined it. If I haven’t put forth a meaning, how can I want it to mean more than what it means? You’ve referred to the “PLAIN meaning of the word,” but what is that PLAIN meaning? Do you have a case cite you can share with us?

    I tried to start a discussion as to what is meant by the word “heard,” and you decided to skip over that discussion and get straight to the conclusion that my definition (a definition I never provided) is wrong.

    You state that “You both simply must accept that the meaning of the word is direct and simple.” However, if it is “direct and simple,” why don’t you share that definition with us? — as opposed to dancing around the issue.

    Let me help you. You can start by writing …
    “The meaning of ‘heard,’ within the context of 35 USC 6, is [insert your definition].”

    You can then follow it up by presenting some support for your definition (if any). BTW — there is nothing wrong with having no support. We are just trying to figure out what it means.

  25. Anon June 8, 2018 5:37 pm

    You miss my point about what YOU are doing by NOT defining it yourself.**

    You want me to do something that you are refusing to do?

    ** your logic is a fallacy based on the attempt that you employ – not defining and then by implication attempting to broaden it to include something else. Why don’t YOU heed your own advice and provide a definition and then YOU won’t have to play the “implied” game?

    You want me to do something? I request that you step up and do the thing you want from me first. As it is, my spelling out the fallacy of your attempt does not need me to provide a definition. Your fallacy remains in how you have posited your situation. You may – if you so choose – clean that up while you are providing a definition, but you do not have to provide a definition to clean up your attempted logic.

  26. Name withheld to protect the innocent June 10, 2018 10:02 pm

    You want me to do something that you are refusing to do?
    Hello …. you are the one who wrote “you claim to NOT be changing the meaning of the word – just as you ARE trying to change the meaning of the word.” Again, I haven’t put forth a definition of the word. How can I change the definition without me putting forth a definition in the first place?

    Why don’t YOU heed your own advice and provide a definition and then YOU won’t have to play the “implied” game?
    I’m not the one who wrote that my definition was WRONG. You were the one who did that. Consequently, you must know: (i) my definition and (ii) the correct definition. I admittedly know neither so I cannot provide either.

    My original comment was “Depending upon what the definition of ‘heard is, it could mean that the current system at the PTAB is in violation of 35 USC 6.” Notice the qualifiers in my statement of “[d]epending upon” and “it could mean.” I wasn’t planting my flag on any particular definition. Instead, I was openly wondering as to what is meant by the word “heard” and the potential consequence of such a definition.

    As it is, my spelling out the fallacy of your attempt does not need me to provide a definition.
    I kid you not, you sound EXACTLY like an examiner. Your claim construction is wrong — however, I won’t tell you why you are wrong by giving you the claim construction I’m working with — you’ll just have to figure that one out for yourself. Also, to “spell[] out” something requires more than conclusory assertions.

    You may – if you so choose – clean that up while you are providing a definition, but you do not have to provide a definition to clean up your attempted logic.
    Again, I didn’t call you out for putting forth a wrong definition. You did.

    The simple fact of the matter is that you read more into my statement (already reproduced above) than actually existed. After I pointed out your error, instead of writing something to the effect “you are right, I see that you actually didn’t put forth any definition of heard,” you decided to double down and then triple down on your initial error.

    Sorry, but no – “heard” only means what the word means,
    I’m sorry, but that is not a definition.

    It does NOT necessitate that the decision must be made with contributions from all panel members.
    Saying what something is not also isn’t a definition (nor is it a definition I put forth because I didn’t put forth any definition).

    Your attempt to change the meaning of “heard” with a notion of “effectively heard” just does not reach. “Effectively heard” remains “heard” and remains “heard” by all present panel members regardless of whether or not one – or more – panel members are tasked with writing up the results.
    “Effectively heard”? A phrase that no one else but yourself used.

    Let me ask you this, since you are an expert as to the meaning of the word “heard” so as to discern what may or may not fall within the meaning of that term in 35 USC 6. If an APJ (on a 3 APJ panel) did not read the Appeal Brief, the Examiner’s Answer, and the Reply Brief, was that appeal “heard” by 3 members of the PTAB?

  27. Anon June 12, 2018 7:50 am

    Nwtpti,

    Your fallacies continue.

    How can I change the definition without me putting forth a definition in the first place?

    Hello – I explained how you are trying to do that: by implication. I also explained that one need not define a word to attempt to move the goalposts, and I also explained that such is the logical fallacy that you are engaging in.

    Why don’t YOU heed your own advice and provide a definition and then YOU won’t have to play the “implied” game?
    I’m not the one who wrote that my definition was WRONG. You were the one who did that. Consequently, you must know: (i) my definition and (ii) the correct definition. I admittedly know neither so I cannot provide either.

    The wrongness is in the game you play – as explained. You keep on wanting to twist this and NOT recognize the point that I actually presented in how your implication game is a logical fallacy.

    My original comment was “Depending upon what the definition of ‘heard is, it could mean that the current system at the PTAB is in violation of 35 USC 6.” Notice the qualifiers in my statement of “[d]epending upon” and “it could mean.” I wasn’t planting my flag on any particular definition. Instead, I was openly wondering as to what is meant by the word “heard” and the potential consequence of such a definition.

    I noted these – did you not note my response ON these very things? The fact that you did not “plant a flag” does NOT mean that you did not move the flag. The whole notion of your implication logic is in the very words that you highlight here: “depending” and “could.” You want to play an implication game WITHOUT committing to that which you want me to commit to. My point back to you (which you have not bothered with) is that THAT very implication game is a logical fallacy. IF you actually do as you want me to do, that would be abundantly clear. But even if you do not do as you want me to do, your logical fallacy can STILL be clear – you just have to think a little more.

    As it is, my spelling out the fallacy of your attempt does not need me to provide a definition.
    I kid you not, you sound EXACTLY like an examiner. Your claim construction is wrong — however, I won’t tell you why you are wrong by giving you the claim construction I’m working with — you’ll just have to figure that one out for yourself. Also, to “spell[] out” something requires more than conclusory assertions.

    You keep on side-tracking this. I stated that your implication game is a fallacy. I also EXPLICITLY told you why you were wrong. You have not addressed that point either.

    You may – if you so choose – clean that up while you are providing a definition, but you do not have to provide a definition to clean up your attempted logic.
    “Again, I didn’t call you out for putting forth a wrong definition. You did.

    Your reply is a non-sequitur. Try reading my statement again. I am telling your that you do not even need to commit to something that you want me to commit to in order to see the fallacy of your attempted implication game.

    The simple fact of the matter is that you read more into my statement (already reproduced above) than actually existed. After I pointed out your error, instead of writing something to the effect “you are right, I see that you actually didn’t put forth any definition of heard,” you decided to double down and then triple down on your initial error.

    That is not the simple fact of the matter.
    YOU still are dwelling in a logical fallacy, and it is you that is doubling down when I explained that logical fallacy to you. As noted, your logical fallacy exists whether or not you supply an actual definition, as your logical fallacy is a movement, rather than a stationary aspect.

    Sorry, but no – “heard” only means what the word means,
    I’m sorry, but that is not a definition.

    I’m sorry, but did I say that THAT was a definition? Maybe YOU need to stop doubling down and read all of what I wrote…

    It does NOT necessitate that the decision must be made with contributions from all panel members.
    Saying what something is not also isn’t a definition (nor is it a definition I put forth because I didn’t put forth any definition).

    More non-sequiturs from you; more not paying attention to what I am telling you because you want me to be saying something else…
    (and it is you here that sounds like an examiner, as excluding what something is not IS a form of telling you what that something is – you ploy a claim construction logic out of context here)

    Your attempt to change the meaning of “heard” with a notion of “effectively heard” just does not reach. “Effectively heard” remains “heard” and remains “heard” by all present panel members regardless of whether or not one – or more – panel members are tasked with writing up the results.

    “Effectively heard”? A phrase that no one else but yourself used.

    Yes. I used that phrase. I used that phrase to describe what you are doing. There is no requirement of ipsis verbis here, is there? You do understand that my description of what you are doing remains accurate, even if it is a phrase that you did not use, right?

    Let me ask you this, since you are an expert as to the meaning of the word “heard” so as to discern what may or may not fall within the meaning of that term in 35 USC 6. If an APJ (on a 3 APJ panel) did not read the Appeal Brief, the Examiner’s Answer, and the Reply Brief, was that appeal “heard” by 3 members of the PTAB?

    First – as I have repeatedly told you (yet you still close your ears) – heard does not need an expert as to what it means. It means what it sounds like it means.

    Second – the meaning is not changed or constrained by its presence in 35 USC 6.

    Third – your direct question here is that a judge not partaking of a portion – a judge “closing his ears” when those “ears” are the different sense of eyes reading – is not hearing what is being said. But your hypo question on partaking here is NOT what is at issue, now is it? There is NO issue here as your question implicates: NO ONE is saying that the other two panel APJs are NOT partaking in hearing parts of the case being presented.

    You appear to want to move the goalposts yet again…

  28. Anon June 12, 2018 1:10 pm

    Other threads have seen a release of comments – this one seems stuck.

  29. A Rational Person June 12, 2018 6:36 pm

    Anon@27,

    Here’s a definition of “hear” of which heard is the present tense:

    https://www.google.com/search?q=definition+heard&rlz=1C1CHBF_enUS757US757&oq=definition+heard&aqs=chrome..69i57j0j69i60j0l3.7023j1j7&sourceid=chrome&ie=UTF-8

    LAW
    listen to and judge (a case or plaintiff).
    “an all-woman jury heard the case”
    synonyms: try, judge; adjudicate (on), adjudge, pass judgment on
    “a jury heard the case”

    Is this your definition of “heard”?

  30. Anon June 12, 2018 9:31 pm

    ARP,

    Thank you – I was not including the “and judge” portion.

    The dictionary link is more like what I had in mind:

    – perceive with the ear the sound made by (someone or something).
    “behind her she could hear men’s voices”
    synonyms: perceive, make out, discern, catch, get, apprehend; overhear
    “she could hear men’s voices”

    – be told or informed of.
    “have you heard the news?”
    synonyms: be informed, be told, find out, discover, learn, gather, glean,
    – ascertain, get word, get wind
    “they heard that I had moved”

    – be aware of; know of the existence of.
    “nobody had ever heard of my college”

    Note that none of these carry the “and judge” or adjudicate meaning. Your (8) Law one may have come from one of the other 187,000,000 results.

    I will grant that if you are taking the meaning to include “pass judgment,” then I may need to ratchet back my own view, as passing judgement does implicate a totality of the proceedings.

  31. Anon June 19, 2018 5:28 pm

    Recognizing that this blog post is now “well below the fold” (on page 3 at this point of the past articles), I still wanted to note that a Law360 article today was published by an ex-APJ (Mr. Teddy Gron). Mr. Gron was decidedly against the policies of the PTAB, and refuted the assertion that Board policies do not squelch dissents.

    To my point, the retired APJ decided to use “air quotes” on the use of “hearing.” – painting the view that “hearing” IS being conducted, even as the larger sense of that word (the position being pursued by ARP), and what is being done cannot be accorded with good conscience (or good judgment) as an actual hearing.

    One item shared is that in order to obtain a certain performance ranking of “outstanding” that certain quotas must be met.

    In addition to not receiving work credit for dissents and concurrences (“on your own dime”) AND having to ask for permission to even spend your own dime, the forced quotas (to receive the desired grade) appear to be highly unreasonable.

    In a 230 day working cycle, in order to be considered for the “outstanding” ranking, an APJ must:
    Write (first chair) 100 decisions,
    Sign off on (second chair) 100 separate decisions, and
    Sign off on (third chair) yet another 100 separate decisions.

    That’s 300 total decisions in 230 working days (and that includes ANY prep and actually hearing of the cases being decided) !

    That’s a non-stop 1.3 cases “heard” (considered fully) – from start to finish EVERY DAY.

    That’s a non-stop TOTAL of 6 hours and 8 minutes per case.

    And that is before any spending of their own dime on time for dissents or concurrences.