Judges are inexperienced---PTAB picks randoms with no qualifications

Recently I was communicating with someone who characterized the Patent Trial and Appeal Board (PTAB) at the United States Patent and Trademark Office (USPTO) as “one of the most sophisticated adjudicative bodies ever fashioned by a civilized nation…” While that type of laudatory praise for the PTAB may be common in some corners of the industry, that feeling is most certainly not shared by everyone within the industry, which is an understatement to say the least.

As I chatted with this fellow who holds such a high opinion of the PTAB I pointed out that in many cases the Administrative Patent Judges of the PTAB have been appointed while still a senior associate, or perhaps a junior partner. The retort: “It might be an interesting study to come up with some way of objectively measuring the competence level of the APJ cadre and get more than an anecdotal gauge on its credentials.”

With this in mind I set out to identify as many patent judges on the PTAB as I could. Although the USPTO does not maintain a roster of PTAB judges (which is amazing in and of itself), I successfully identified 174 patent judges currently on the PTAB through LinkedIn and other public sources. I then created a spreadsheet showing where they went to law school, when they graduated law school, when they were appointed to the PTAB, how many years of experience as a lawyer they had at the time of their appointment to the PTAB (i.e., number of years since graduating from law school), and how many years of total xperience they will have in 2018 (i.e., total number of years since graduating from law school, including time served as a judge).

I reached out to the USPTO for comment, providing them with a copy of my spreadsheet on the 174 PTAB judges I could locate (including the name of the judges). A spokesman for the USPTO declined to comment for this story. I’ve decided not to publish the names of the PTAB judges, instead identifying them as APJ 1 through APJ 174. The point is not to embarrass any particular Administrative Patent Judge.

Notwithstanding the desire to not embarrass any particular APJ, the PTAB has become the most important and influential tribunal in the U.S. patent landscape. This Article I executive tribunal is rendering decisions on what the Supreme Court and the Patent Act explicitly refer to as being property (i.e., a patent). The experience level of the PTAB as a whole is shockingly low in comparison to federal district court judges, and the Secretary of Commerce is appointing individuals who could never win confirmation in the United States Senate to be a district court judge and investing them with extraordinary power to revoke property rights.

Patent Judges of the PTAB: Median & Average

The median number of years of experience at the time of appointment for patent judges on the PTAB was 11 years experience, with the average being 13.04 years experience. As of 2018, the median number of years of experience for patent judges on the PTAB was 17 years experience, with the average being 19.09 years experience.

The average patent judge on the PTAB had 13 years of experience or less when hired by the Secretary of Commerce (61.49%), and went to law school either at George Washington (21), Georgetown (16), George Mason (10), American University (9) or the University of Virginia (7), which were the top 5 most frequently attended law schools for PTAB judges.

Federal District Court Judges

I also identified 178 federal district court judges from the primary patent courts in the United States — Eastern District of Texas, Northern District of California, Northern District of Illinois, Central District of California, Delaware, New Jersey, and Massachusetts (Boston Division).[1] It is worth noting that all of the 178 federal district court judges in the primary patent courts were appointed with at least 11 years of experience (i.e., 11 years or more removed from graduating from law school). Indeed, 90.96% had at least 15 years of experience at the time they were appointed, and 70.06% had at least 20 years of experience at the time they were appointed. Furthermore, in 2018 all 178 federal district court judges will have at least 18 years of experience.

The median number of years of experience at the time of appointment for federal district court judges was 23 years experience, with the average being 23.38 years experience. As of 2018, the median number of years of experience for federal district court judges in the primary patent courts was 40 years experience, with the average being 39.95 years experience.

The average district court judge had 23+ years of experience at the time they were confirmed by the Senate (55.93%), and went to law school either at Harvard (30), Yale (14), the University of California at Berkeley (12), Stanford (10), or Columbia (9), which were the top 5 most frequently attended law schools for district court judges.

Inexperienced PTAB Judges

What was most astonishing is just how inexperienced many patent judges of the PTAB are compared to federal district court judges. For example, many PTAB judges were appointed to the PTAB at a time when they were associates, and in some cases junior associates.

This study uncovered several shocking revelations. First, 12.64% of PTAB judges were appointed with less than 5 years of experience prior to their appointment as APJs (i.e., 5 years or less removed from graduating from law school), while some PTAB judges were appointed with as little as 2 years of experience. Indeed, 7.47% of APJs had 4 or less years of experience when they were appointed to the PTAB. More than one-third (36.21%) of PTAB judges were appointed with 9 years or less of experience.

It is also worthwhile to specifically look at the 10 year mark post-law school for an experience comparison between PTAB judges and federal district court judges. There were zero federal district court judges appointed with 10 years or less experience, while 46.55% of PTAB judges were appointed with 10 years or less experience. Those familiar with the industry will well know that at many major law firms 10 years is the tipping point between partner and associate. Thus, this would mean that 46.55% of PTAB judges were appointed while they were still at best senior associates. Worse, 4.60% of PTAB judges were appointed with 3 or fewer years of experience, which means those 4.60% of PTAB judges were appointed at a time when they were only at a junior associate level.

Several other key statistics show the tremendous disparity between experience levels of patent judges of the PTAB and federal district court judges. Only 37.71% of APJs on the PTAB were appointed having 14+ years of experience. By comparison, 96.05% of federal district court judges were appointed having 14+ years of experience.

As of 2018, there are 50.57% of patent judges on the PTAB who have 17 years or less experience. There are zero judges on the federal district court in the major patent courts that have 17 years or less experience. Indeed, 91.53% of judges on the federal district court have 25+ years of experience in 2018, while only 21.26% of APJs on the PTAB have 25+ years of experience.

Conclusion

The America Invents Act (AIA) invests PTAB judges with extraordinary powers. For example, overwhelmingly institution decisions are not appealable. Yet, there have been numerous lawyers with shockingly little experience appointed to the position of patent judge, and vested with the power to make decisions that cannot be reviewed by any Article III federal court.