35 U.S.C. 6 provides for a Patent Trial and Appeal Board as follows:
35 U.S.C. 6 Patent Trial and Appeal Board.
- (a) ESTABLISHMENT AND COMPOSITION.— There shall be in the Office a Patent Trial and Appeal Board. The Director, the Deputy Director, the Commissioner for Patents, the Commissioner for Trademarks, and the administrative patent judges shall constitute the Patent Trial and Appeal Board. The administrative patent judges shall be persons of competent legal knowledge and scientific ability who are appointed by the Secretary, in consultation with the Director. Any reference in any Federal law, Executive order, rule, regulation, or delegation of authority, or any document of or pertaining to the Board of Patent Appeals and Interferences is deemed to refer to the Patent Trial and Appeal Board.
- (b) DUTIES.— The Patent Trial and Appeal Board shall—
- (1) on written appeal of an applicant, review adverse decisions of examiners upon applications for patents pursuant to section 134(a);
- (2) review appeals of reexaminations pursuant to section 134(b);
- (3) conduct derivation proceedings pursuant to section 135; and
- (4) conduct inter partes reviews and post-grant reviews pursuant to chapters 31 and 32.
- (c) 3-MEMBER PANELS.— Each appeal, derivation proceeding, post-grant review, and inter partes review shall be heard by at least three members of the Board, who shall be designated by the Director. Only the Patent Trial and Appeal Board may grant rehearings.
- (d) TREATMENT OF PRIOR APPOINTMENTS.—The Secretary of Commerce may, in the Secretary’s discretion, deem the appointment of an administrative patent judge who, before the date of the enactment of this subsection, held office pursuant to an appointment by the Director to take effect on the date on which the Director initially appointed the administrative patent judge. It shall be a defense to a challenge to the appointment of an administrative patent judge on the basis of the judge’s having been originally appointed by the Director that the administrative patent judge so appointed was acting as a de facto officer.
35 U.S.C. 6 was amended in Pub. L. 112-29, sec. 7. In addition to changing the duties of the Board and clarifying its membership, the name of the Board was changed from the Board of Patent Appeals and Interferences (BPAI) to the Patent Trial and Appeal Board (PTAB), effective September 16, 2012. Consistent with 35 U.S.C. 6(a), examiners should treat any reference to the BPAI (or its predecessors, the separate Board of Appeals and Board of Interferences) as a reference to the PTAB. In a citation to a decision of the Board (e.g., in an Office action or Appeal Brief), decisions mailed prior to September 16, 2012 should continue to be cited as decisions of the BPAI or its predecessor organizations.
As provided by 37 CFR 41.2, “Board” means the Patent Trial and Appeal Board and includes:
- (A) For a final Board action:
- (1) In an appeal or contested case, a panel of the Board;
- (2) In a proceeding under 37 CFR 41.3, the Chief Administrative Patent Judge or another official acting under an express delegation from the Chief Administrative Patent Judge.
- (B) For non-final actions, a Board member or employee acting with the authority of the Board.
“Board member” means the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, the Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the U.S. Patent and Trademark Office, the Commissioner for Patents, the Commissioner for Trademarks, and the administrative patent judges.