A pilot program proposed by the U.S. Patent and Trademark Office would have a single Administrative Patent Judge (APJ), as opposed to a panel of three, decide whether to institute trial in a post grant patent proceeding, such as an inter partes review. The full panel would adjudicate the trial if it is instituted. The pilot would last 3-6 months. The USPTO is requesting comments on the proposed pilot program.
While this procedure, if permanently adopted, could reduce the overall work-load on the APJs, it would reduce the resources available for determining if trial is to be instituted. Combined with proposed rules which allow the patent owner to present testimonial evidence in the Patent Owner’s Response, and thus increase the volume and complexity of the record, this would seem to place a great burden on a single APJ deciding whether to institute trial. If adopted, more than ever, Petitioner’s would have to present a clear and concise rationale for instituting a trial.