The Precedential Opinion Panel (POP) operates at the discretion of the Director of the United States Patent and Trademark Office (USPTO) to establish binding agency authority concerning major policy or procedural issues, or other issues of exceptional importance to the Patent Trial and Appeal Board (PTAB or the Board).
A listing of all POP review grants and the status of each request for POP review are listed on the Status of Precedential Opinion Panel requests webpage.
Composition of the POP
By default, POP members are the Director of the USPTO, the Commissioner for Patents, and the Chief Judge for the PTAB. The Director may determine that a panel of more than three members is appropriate in certain circumstances. The Director may also, in his or her discretion, replace the default members of the POP with the Deputy Director of the USPTO, the Deputy Chief Judge for the PTAB, or an Operational Vice Chief Judge for the PTAB, in any case.
The three primary members of the POP may each delegate their authority under certain circumstances. A POP member’s authority may be delegated for reasons including conflicts of interest and availability or when the issues to be decided are directed to procedural aspects of practice before the Board.
How to obtain POP review
The mechanism for obtaining POP review is described in Standard Operating Procedure 2 (SOP 2). POP review can be initiated in three ways.
Once a request is received from a party or a member of the Board, a Notification of Receipt of POP Request form and the email requesting POP review are entered into the case docket or patent application file.
POP request Amicus forms
Any individual may submit an amicus form supporting or opposing a pending request for POP review in a particular case. Individuals must provide the case number in which the POP request has been made, particular demographic information, and any interest or relationship to the case. Individuals may further indicate whether they support or oppose POP review, and provide reasons for their position (e.g., the decision is/is not contrary to Supreme Court, Federal Circuit, or Board precedent). Submission of the form must be within seven business days of entry of the Notification of Receipt of POP Request form into the case docket or patent application file. This information will be entered into the record of the case or patent application.
Any amicus form submitted by a party with whom a member of POP has a conflict will be struck. This process is consistent with Federal Rule of Appellate Procedure 29(a)(2) as adopted by the United States Court of Appeals for the Federal Circuit.
The amicus form can be accessed here.
How the POP review process works
A POP Screening Committee will review requests for POP review and will forward its recommendations to the Director. Where appropriate, the Director will convene the POP to decide whether to grant the POP request and rehearing and, if POP review and rehearing is granted, to render a decision on rehearing in the case.
In all instances in which POP review is ordered, the POP will enter an order notifying the parties and the public when the POP has been designated and assigned to a particular case. The order will further identify the issues the POP intends to resolve and the composition of the panel.
The POP may request additional briefing on identified issues, and, in appropriate circumstances, may further authorize the filing of amicus briefs. The POP may order, at its discretion, an oral hearing. Once the case has been assigned to the POP, the POP will render a decision in the case resolving the identified issues. The POP will maintain authority over all issues in the case while the case is under POP review. The POP may, however, delegate authority back to the prior Board panel assigned to the case to handle routine interlocutory matters, conduct conference calls, or attend to other matters outside of the intended scope of the POP review, among other things. If authority is so delegated, the prior Board panel assigned to the case will keep the POP apprised of these matters and provide reasonable prior notice of any intended decision, but may handle matters so delegated without direction from the POP. If further proceedings in the case are warranted after the POP decision is rendered, the prior Board panel assigned to the case typically will conduct those proceedings.
Effect of POP decisions
The Director may designate any decision by any panel, including the POP, as precedential. No decision may be designated as precedential without the Director’s approval. Precedential decisions entered by the POP shall be labeled “precedential.”
Precedential decisions shall be posted to the Board’s Precedential Decisions webpage and may be sent to commercial reporters that routinely publish Board decisions. The POP may also choose to designate its decision as routine when, e.g., the decision in retrospect is no longer of precedent-setting importance. In its discretion, the POP may alternatively choose to designate its decision as informative. Opinions of the POP may be de-designated in accordance with the procedures set forth in SOP 2.
The POP Screening Committee – Composition and duties
The Screening Committee has at least 11 members and includes representatives from various USPTO business units who serve at the discretion of the Director. The Screening Committee presently comprises of members from the following business units of the USPTO:
The Screening Committee meets periodically to evaluate each request for POP review and recommends to the POP which decisions to review. The Director may also convene the Screening Committee to make recommendations on decisions that the Director is considering for sua sponte POP review.
The POP review process utilizes the Screening Committee in a similar manner to the “cert. pool” of the Supreme Court of the United States. The “cert. pool” is a labor-saving process for managing petitions for certiorari that involves a law clerk reviewing a petition and circulating a memorandum to several of the Justices that includes a recommendation as to whether the Court should review the case. Similarly, the Screening Committee provides a singular recommendation to the POP that includes a consensus recommendation from various business units of the USPTO, or notes differing views among the Screening Committee members.
Screening Committee meetings may proceed with less than all members in attendance. A quorum of seven members must be present for each meeting. Additional individuals, such as technical or subject matter experts, or others assisting in an administrative support capacity, may participate in Screening Committee meetings but do not provide recommendations to the POP.
The Screening Committee makes an advisory recommendation for each request for POP review. The Screening Committee provides its recommendations to the POP at regular intervals, promoting the timely consideration of POP review requests.
Conflict of interest
In determining whether the Director or any other USPTO employee, including members of the POP and Screening Committee, has a conflict of interest and therefore cannot participate in the POP review process, the USPTO follows the guidance set forth in the United States Department of Commerce’s Summary of Ethics Rules.
Pursuant to the procedure for handling the Director’s conflicts, if the Director has a conflict with parties, counsel, or patent(s) in the decision, she will be recused, and the Deputy Director will take the required action. If the position of the Deputy Director is vacant, or if the Deputy Director also has a conflict of interest, the Commissioner for Patents (or, if none, the Acting Commissioner of Patents) will take the required action.
No member of the Screening Committee will participate in the consideration of a request for POP review if that member has a conflict of interest.
Additionally, PTAB Administrative Patent Judges who are also Screening Committee members will follow the guidance on conflicts of interest set forth in the PTAB’s Standard Operating Procedure 1 and will recuse themselves from any discussion or analysis involving cases or related cases on which they are paneled. Similarly, if any member of the Screening Committee was directly involved in the examination of the underlying patent or a related patent, that member will likewise recuse themselves.
In the event of a conflict of interest, the member(s) will notify the other members of the Screening Committee that a conflict exists and will not participate in the discussion of the conflicted matter.