Is “many, many times” equivalent to “rampant” use of stacked panels?

In the oral argument of Oil States, Justice Kennedy asked what would be the situation if the stacking of panels by the Chief Judge of the PTAB were rampant:

11   MR. KISE: Well, Mr. Chief Justice,

12   the panel packing, if you will, mentioned by

13   Petitioner in the briefs, I don’t believe -­

14   and — and I’ll leave it to the government to

15   — to have the exact statistics — precise

16   statistics, but I don’t believe that’s taken

17   place more than one or two times, and I don’t

18   believe it’s taken place with respect -­

19   JUSTICE KENNEDY: Well, suppose it

20   were rampant.

I suppose rampant is a subjective term; but, in the oral argument of Nidec v. Zhongshan, the Solicitor for the USPTO, who once served as the acting Chief Judge of the PTAB, commented that over the years panels of the Board have been expanded “many, many times.”

You can listen to the sound bite from Nidec here: [Listen].  Or, you can find it at the 25 min 40 second mark of the oral argument in Nidec Motor Corp. v. ZHONGSHAN BROAD OCEAN MOTOR, 868 F.3d 1013 (Fed. Cir. 2017), available at: [Link].   Or, you can review the exchange from Nidec below:

Judge Reyna: What kind of uniformity or certainty do we have in that where the PTAB can look at a prior decision and say well we don’t like that, let’s jump back in there and change that?

PTO: Well, ….

Judge Wallach: How does the Director choose which judge to assign to expand the panel?

PTO: Uh, that’s provided, your Honor, by our standard operating procedure. And, the Chief Judge actually makes that decision.And, the judges are selected based on their technical and legal competency. And, over the years, many many panels at the Board have been expanded. In fact if you looked at the thirty . . . .

Judge Reyna: Are they selected on whether they’re going to rule in a certain way?

PTO: Uh, well, people can be placed on the panel . . . for example, the Director can place him or herself on the panel, and certainly the Director knows how they’re going to rule. Nidec has not said and they say at their blue brief at page 43 that they don’t challenge the independence of these judges on this panel. Um, these judges were not selected and told to make a particular decision. If judges could be told to make a particular decision, there would be no need to expand a panel in the first place.


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