PTO Panel Stacking: Unblessed by the Federal Circuit and Likely Unlawful

Abstract

In recent years, the United States Patent and Trademark Office (“PTO”) sought to control results in adjudication by its Patent Trial and Appeals Board (“PTAB”) through a process commonly described as “panel stacking.” In a “strong form” of this practice, the PTO Director or Director’s delegee generated a new panel of administrative judges to conduct rehearing proceedings after an initial panel produced a decision with which the Director or delegee disagreed. This Essay contends that this strong-form practice raises constitutional concerns under the Fifth Amendment’s Due Process Clause. Consequently, the doctrine of constitutional avoidance instructs that courts should understand the Patent Act to preclude strong-form panel stacking. Judges and commentators have repeatedly erred by citing a plurality opinion on panel stacking in In re Alappat as if the plurality opinion authoritatively held that the Patent Act authorizes panel stacking. This Essay seeks to correct that misconception and shows that, once one takes account of constitutional concerns, the Alappat judges’ recognition of statutory ambiguity effectively condemns strong-form panel stacking, rather than “blessing” it.