The Federal Circuit decided Nidec v. Zhongshan today. \u00a0The panel deemed it unnecessary to delve into the panel stacking issue that was raised in the case. \u00a0However, two of the judges did express concern toward the PTO’s practice of panel stacking. \u00a0Namely, Judge Dyk and Judge Wallach noted the following:<\/p>\n
Second, we are also concerned about the PTO\u2019s practice of expanding administrative panels to decide requests for rehearing in order to \u201csecure and maintain uniformity of the Board\u2019s decisions.\u201d Director Br. 27. Here, after a three-member panel of administrative judges denied petitioner Broad Ocean\u2019s request for joinder, Broad Ocean requested rehearing and requested that the rehearing be decided by an expanded panel. Subsequently, \u201c[t]he Acting Chief Judge, acting on behalf of the Director,\u201d J.A. 933 n.1, expanded the panel from three to five members, and the reconstituted panel set aside the earlier decision. <\/span><\/p>\n
<\/p>\n
<\/p>\n
Nidec alleges that the two administrative judges added to the panel were chosen with some expectation that they would vote to set aside the earlier panel decision. The Director represents that the PTO \u201cis not directing individual judges to decide cases in a certain way.\u201d Director Br. 21 (quotation marks omitted). While we recognize the importance of achieving uniformity in PTO decisions, we question whether the practice of expanding panels where the PTO is dissatisfied with a panel\u2019s earlier decision is the appropriate mechanism of achieving the de- sired uniformity. But, as with the joinder issue, we need not resolve this issue here. Nor need we address the predicate issue of appealability.<\/span><\/p><\/blockquote>\n
Nidec v. Zhongshan<\/em>, 2016-2321 (Fed. Cir. August 22, 2017)(slip. op. at pages 3-4 of Judge Dyk’s concurring opinion).<\/p>\n
One aspect of the opinion that I thought was interesting was the panel’s bald statement of jurisdiction. \u00a0Namely, the panel stated:<\/p>\n
\n\n\nWe have jurisdiction pursuant to 28 U.S.C. \u00a7 1295(a)(4)(A). <\/span><\/p><\/blockquote>\n<\/div>\n<\/div>\n<\/div>\n
Nidec v. Zhongshan<\/em>, 2016-2321 (Fed. Cir. August 22, 2017)(slip. op. at page 5 of the per curiam opinion).<\/p>\n
That was the limit of the analysis that the court articulated with respect to assessing its jurisdiction. \u00a0However, whether the Federal Circuit has jurisdiction to review decisions from stacked panels is not an issue that is without controversy. For example, in the Alappat<\/em> case, both Judges Mayer and Michel expressed the position that the Federal Circuit does not possess jurisdiction to review decisions from stacked panels. \u00a0They stated:<\/p>\n
I do not agree that we have jurisdiction over this appeal. The Commissioner exceeded his statutory authority in convening a new, expanded panel to reconsider the board\u2019s original decision in Alappat\u2019s appeal from the examiner. Because the Commissioner\u2019s acts were not in accordance with law, the reconsideration decision cannot be a \u201cdecision of the Board of Patent Appeals and Interferences\u201d within the meaning of 28 U.S.C. \u00a7 1295(4)(A) (1988), and this court has no jurisdiction to address the merits of the appeal. <\/span>See <\/em>In re Bose Corp.,<\/em>772 F.2d 866, 869, 227 USPQ 1, 3 (Fed.Cir.1985)<\/a> (an improperly constituted board may not render a valid decision over which this court may exercise its review jurisdiction).<\/span><\/p><\/blockquote>\n
In re Alappat<\/em>, 33 F.3d 1526, 1571 (Fed. Cir. 1994)(Judge Mayer and Judge Michel dissenting).<\/span><\/p>\n
Judges Dyk and Wallach seem to be on the right track in expressing concern about the legitimacy of stacked panels. However, that concern also undermines the determination of jurisdiction. \u00a0And, if I recall correctly, the determination of jurisdiction is not something that can be waived by a party or stipulated to by a party. \u00a0The court must determine for itself as the very first act in a matter that it possesses jurisdiction, regardless of whether the issue has been raised by the parties.<\/p>\n
I am not sure that the appellant could have raised lack of jurisdiction in the first place. \u00a0That argument places the appellant in a catch-22 situation. \u00a0To bring the appeal, the appellant implicitly is asserting that the court has jurisdiction to hear the case. \u00a0So, the appellant can not then do an about face and argue to the court that the court does not possess jurisdiction. \u00a0Perhaps, instead, an appellant should request relief by petitioning the Federal Circuit for a writ of mandamus, arguing that the lower tribunal’s ruling was illegal due to an illegally constituted panel?<\/p>\n","protected":false},"excerpt":{"rendered":"
The Federal Circuit decided Nidec v. Zhongshan today. \u00a0The panel deemed it unnecessary to delve into the panel stacking issue that was raised in the case. \u00a0However, two of the judges did express concern toward the PTO’s practice of panel stacking. \u00a0Namely, Judge Dyk and Judge Wallach noted the following: Second, we are also concerned […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9190"}],"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=9190"}],"version-history":[{"count":11,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9190\/revisions"}],"predecessor-version":[{"id":9200,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9190\/revisions\/9200"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9190"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9190"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9190"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}