Posts Tagged: "fair play and substantial justice"

Those pointing to Alappat to support modern PTAB panel stacking are, however, grossly misstating the nature of the decision in Alappat, and ignoring the fundamental shift in the adjudicative responsibilities of the Board since passage of the America Invents Act (AIA)… As deeply troubling as Alappat is in terms of process and procedural fairness, the decision of the Federal Circuit to acquiesce to panel stacking in Alappat absolutely does not mean that panel stacking in contested cases under the AIA has been authorized by the Federal Circuit. Indeed, panel stacking, whether overt and on the record or as the result of secret internal deliberations within the PTAB, has never been authorized by the Federal Circuit relative to IPR, PGR and/or CBM proceedings. At some point whether panel stacking and admitted predetermination of outcomes is allowed in AIA contested cases will be a question of first impression at the Federal Circuit.