35 U.S.C. § 6(c) provides that proceedings at the Board “shall be heard by at least 3 members of the Patent Trial and Appeal Board [Board], who shall be designated by the Director.” Accordingly, the DRP shall consist of three members of the Board.
The administrative patent judges of the Board include, among others, a Chief Administrative Patent Judge (“Chief Judge”), a Deputy Chief Administrative Patent Judge (“Deputy Chief Judge”), Vice Chief Administrative Patent Judges (“Vice Chief Judges”), and Senior Lead Administrative Patent Judges (“Senior Lead Judges”).
The DRP shall be selected from the Chief Judge, Deputy Chief Judge, Vice Chief Judges, and Senior Lead Judges, excluding judges who served on the original Board panel for the case under review or otherwise have a conflict with the case.
The paneling of members onto the DRP will be carried out impartially and consistent with the procedures and requirements set forth in Standard Operating Procedure 1 (SOP 1) except that the pool of available judges is limited to the judges noted above.
The DRP process does not otherwise alter the processes and procedures set forth in SOP 1.
For purposes of the DRP designation process, persons serving in an acting capacity for the positions of Chief Judge, Deputy Chief Judge, Vice Chief Judge, or Senior Lead Judge may serve on a DRP.
Any administrative patent judge who advises the Director on a particular case under consideration will not serve on the DRP panel for such a case.