Board of Patent Appeals and Interferences

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The Board of Patent Appeals and Interferences (BPAI) is a body of the United States Patent and Trademark Office (USPTO), which decides issues of patentability. If an applicant for an invention cannot convince a patent examiner that they are entitled to their claims, then the applicant can appeal the examiner's decision to the board. Decisions of the board can be further appealed to the United States Court of Appeals for the Federal Circuit (CAFC) or to a district court under 35 U.S.C. § 145. The decisions of the CAFC can be further appealed to the United States Supreme Court. The U.S. Supreme Court has the final word on the judicial standards for patentability.

The United States Congress, however, can change the patent laws and thus override a decision of the United States Supreme Court.

An alternative appealing path is a civil action against the Commissioner of Patents and Trademarks in the U.S. District Court for the District of Columbia. Further appeals will be directed to the Federal Circuit.^{[citation needed]}

The procedure for appealing an examiner's decision to the board of appeals is described in section 1200 of the U.S. Manual of Patent Examining Procedure (MPEP). ^[1]

As of 2006, the Chief Administrative Patent Judge is Michael R. Fleming. The Vice Chief Administrative Patent Judge is Gary V. Harkcom.

In 2007, Prof. John Fitzgerald Duffy raised the point that, since 2000, the appointment process of BPAI Judges has been unconstitutional. ^[2]

[edit] References

^ USPTO, Chapter 1200 Appeal, Manual of Patent Examining Procedure.
^ John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007, Patently-O Patent L.J. 21, or Duffy, John F., "Are Administrative Patent Judges Unconstitutional?" . Available at SSRN: http://ssrn.com/abstract=1128311.