Neither the AIA statute nor the Constitution precludes the same panel of the Board that made the decision to institute inter partes review from making the final determination.
Background / Facts: The patent on appeal here from inter partes review proceedings at the PTO is directed to a surgical device used to staple, secure, and seal tissue that has been incised. The PTO, through a panel of the Patent Trial and Appeals Board (“PTAB” or “Board”), granted the petition for inter partes review. On the merits, the same Board panel found all challenged claims invalid as obvious over the prior art.
Issue(s): Whether the Board’s final decision is invalid because the same Board panel made both the decision to institute and the final decision.
Holding(s): No. “[W]here, as here, there are no other separate procedural-fairness infirmities alleged, the PTO’s assignment of the institution and final decisions to one panel of the Board does not violate due process under governing Supreme Court precedent.” Further, “[t]here is nothing in the statute or legislative history of the statute indicating a concern with separating the functions of initiation and final decision. [The patentee] ignores the longstanding rule that agency heads have implied authority to delegate to officials within the agency, even without explicit statutory authority and even when agency officials have other statutory duties.”