Peeking behind the curtain

Does the Federal Circuit have all the information that it needs to evaluate whether PTAB judges are Principal officers versus Inferior officers? If en banc review is granted in Arthrex, perhaps the court should instruct the government to explain in its brief the behind-the-scenes operations of the PTAB. For example, are other judges allowed to comment on a draft opinion? Are there any levels of review that take place on a draft opinion? Are draft opinions circulated for review by other judges? Are judges assigned randomly? Has non-conformance with agency memos affected any PTAB judge’s pay or promotion? Does the Solicitor’s Office have any input on PTAB decisions, particularly after remand from the Federal Circuit? Does PAIR reflect all the steps taken by the PTAB or is there a non-public database that reflects additional steps or processes? If so, what are those additional steps or processes?

At the very least, the Federal Circuit needs to know the full process that goes on at the PTAB so that it can thoroughly evaluate the supervisory power of the Director. Right now, the court seems to be assuming that it knows the process. One issue that I have been wondering about is whether the Director has been acting with “apparent” authority. Fo example, if the Director and his subordinates have been reviewing draft opinions prior to issuance without any pushback from the PTAB judges, that might be a relevant factor in deciding whether the Director has been acting with “apparent” supervisory authority. If judges have been reviewed based on their conformance with agency policy, that, too, might be indicative of “apparent” supervisory authority. Whether “apparent” supervisory authority is sufficient to answer the underlying question in Arthrex is another matter.

If there are indeed additional steps going on behind the scenes, it would be an interesting question of whether the government attorneys have a duty of candor to inform the court of those processes regardless of whether the government is requested to do so by the court.

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