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`PTAB's 'Death Squad' Label Not Totally Off-Base, Chief Says
`
`By Ryan Davis
`
`Law360, New York (August 14, 2014, 5:47 PM EDT) -- The Patent Trial and Appeal Board's reputation as a "death squad" for patents is
`"unfortunate language," but in some ways it adequately describes the mission Congress gave the board under the America Invents Act,
`its chief judge said at a meeting Thursday.
`
`PTAB Chief Judge James Smith told a meeting of the U.S. Patent and Trademark Office's Patent Public Advisory Committee that while
`the label has been used by critics of the board concerned about the rate at which it is reviewing and invalidating patents under the AIA
`programs, there may be some truth to it.
`
`"The purpose of the proceedings is to identify some limited number of patents and claims that are unpatentable and make sure the claims
`are removed," he said. "If we weren't, in part, doing some 'death squadding,' we would not be doing what the statute calls on us to do."
`
`He stressed that the board certainly does not summarily review or invalidate every patent that comes before it, but carefully evaluates
`each case.
`
`"The question is, are we hearing each case independently and deciding with no bias what the right answer is based on the evidence
`presented," he said. "That is always what we intended to do and the only thing we have done since the proceedings began."
`
`The "death squad" label has stuck to the board since it was used by former Federal Circuit Chief Judge Randall Rader in a speech last
`year, where he said the patent office was in tension with itself, with thousand of examiners "giving birth" to patents and hundreds of
`judges on the PTAB "acting as death squads, kind of killing property rights."
`
`Judge Smith said Thursday that the term was "unfortunate language because it is not very probative as to what is going on."
`
`"As I have thought about it more, maybe death squads isn't as pejorative as it may have been meant," he said. "Clearly, the statistics
`show not every claim in a patent brought forward to the board has met its death because it has been raised in a petition."
`
`The rate at which the board has instituted reviews of patents challenged under the AIA programs has been in decline over the past year,
`possibly because some of the weakest patents were challenged soon after the programs began, Judge Smith said.
`
`In fiscal 2013, the board instituted 167 reviews and denied 26 petitions challenging patents, thus reviewing patents a rate of 87 percent,
`he said. In fiscal 2013, with many more petitions filed, 449 trials have been instituted and 149 have been denied, a rate of 76 percent.
`
`The AIA review programs have been considerably more popular than the USPTO had anticipated. In June, the board received a
`"astronomical high" of 190 new petitions, Judge Smith said, although that dropped to just over 120 in July.
`
`"At one time, the thought was, would we ever top 100" petitions in a month, he said. "Now, our prayer is that we go a little while longer
`before [we] hit 200."
`
`--Editing by Emily Kokoll.
`
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