{"id":183,"date":"2009-07-16T17:30:43","date_gmt":"2009-07-16T23:30:43","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=183"},"modified":"2009-07-16T17:30:43","modified_gmt":"2009-07-16T23:30:43","slug":"bpai-requesting-oral-argument","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=183","title":{"rendered":"BPAI — Requesting Oral Argument"},"content":{"rendered":"

The number of appeals being filed\u00a0at the BPAI level\u00a0has increased significantly in recent years.\u00a0 In 2005, roughly 3000 appeals were filed.\u00a0 In 2008, that number had doubled to roughly 6000.\u00a0 See<\/span> http:\/\/www.patentlyo.com\/patent\/2009\/01\/bpai-appeal-sta.html<\/a>.\u00a0 Moreover, the rate of reversal has apparently dropped from a 40% reversal rate in 2005 to a 20% reversal rate in 2009.\u00a0 Again, see<\/span> http:\/\/www.patentlyo.com\/patent\/2009\/01\/bpai-appeal-sta.html<\/a>.\u00a0 Obviously, one can expect that a greater number of appeals from the BPAI will now be making their way to the CAFC.<\/p>\n

One important practice tip that might be of interest to some readers is that requesting oral argument at the board level can provide a possible procedural advantage.\u00a0 Former Administrative Patent Judge William F. Smith of Woodcock Washburn in Atlanta has noted in some AIPLA presentations\u00a0that the merits panel of a case being orally argued will generally convene a pre-hearing conference where all Board members on the merits panel will meet to review the issues to be argued.\u00a0 In contrast, a case presented solely on the briefs \u00a0is in most cases initially considered by one member of the merits panel and then conferenced with a second member of the merits panel.\u00a0 If the first two members agree on the disposition of all the issues in the appeal, the draft opinion\u00a0is drafted reflecting the conference decision.\u00a0 Thus, the third member of the merits panel will see the\u00a0decision for the first time when it is circulating and already has two signatures.\u00a0 Therefore, it behooves an appellant to request oral argument because\u00a0the appeal\u00a0initially\u00a0receives the consideration and insight of all three ALJ’s about the merits of the case rather than just two.<\/p>\n

It has been reported in recent months that the\u00a0Board is now requiring ALJ’s to provide a\u00a0justification as to why they need\u00a0to write a dissenting opinion before receiving credit for it.\u00a0 See<\/span> http:\/\/www.patentlyo.com\/patent\/2009\/05\/bpai-shuts-down-dissent-in-favor-of-efficiency.html<\/a>\u00a0 Thus, there is now even less incentive for an ALJ to draft a dissenting opinion that might be\u00a0enlightening when the case is\u00a0appealed to the Federal Circuit.<\/p>\n","protected":false},"excerpt":{"rendered":"

The number of appeals being filed\u00a0at the BPAI level\u00a0has increased significantly in recent years.\u00a0 In 2005, roughly 3000 appeals were filed.\u00a0 In 2008, that number had doubled to roughly 6000.\u00a0 See http:\/\/www.patentlyo.com\/patent\/2009\/01\/bpai-appeal-sta.html.\u00a0 Moreover, the rate of reversal has apparently dropped from a 40% reversal rate in 2005 to a 20% reversal rate in 2009.\u00a0 Again, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/183"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=183"}],"version-history":[{"count":19,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/183\/revisions"}],"predecessor-version":[{"id":202,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/183\/revisions\/202"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=183"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=183"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=183"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}