Former acting chief judge of PTAB to argue Nidec v. Zhongshan

One of the interesting twists in tomorrow’s oral argument of Nidec Motor Corporation v. Zhongshan Broad Ocean Motor Co. is that Nathan Kelley, the USPTO Solicitor, has entered a notice to argue the case on behalf of the USPTO.  If I am not mistaken, Mr. Kelley was serving as the interim Chief Judge of the PTAB at the time the enlarged panel was ordered.  So, this is a very rare instance, or perhaps totally unprecedented, where the Federal Circuit will be able to ask questions directly of the administrative official who ordered an enlarged Board panel.

I suppose some questions that might come up are:

1)  Why was the original panel enlarged?

2) Did the Commissioner order the enlarged panel and how were those instructions communicated?

3) How were the additional judges selected?  What criteria was used to select the additional judges?

4) Has a vote ever been taken among the PTAB judges as a whole as to whether a self-joinder decision of the  PTAB should be made precedential and what was the outcome of that vote?

5)  Did Colonel Jessup order the code red . . . . wait, we already know the answer to that one.

6)  Is the appellant correct that the decision of In re Alappat, while abrogated in part on other grounds, does not sanction the use of stacked panels?

7)  Why isn’t notice and comment rule making a better vehicle for achieving the Commissioner’s policy, especially with the option of Commissioner directed reexamination still available for an unjoined argument in this case?

Comments are closed.