Love that Judge Wallach, does not turn a blind eye, to "STACKED PANELS of the PTAB". This is 1 week old and fits with the Shenanigans the Supreme Court spoke of on Cuozzo.
"Judges Dyk and Wallach seem to be on the right track in expressing concern about the legitimacy of stacked panels."
"The Federal Circuit decided Nidec v. Zhongshan today. The panel deemed it unnecessary to delve into the panel stacking issue that was raised in the case. However, two of the judges did express concern toward the PTO’s practice of panel stacking. Namely, Judge Dyk and Judge Wallach noted the following:
Second, we are also concerned about the PTO’s practice of expanding administrative panels to decide requests for rehearing in order to “secure and maintain uniformity of the Board’s decisions.” Director Br. 27. Here, after a three-member panel of administrative judges denied petitioner Broad Ocean’s request for joinder, Broad Ocean requested rehearing and requested that the rehearing be decided by an expanded panel. Subsequently, “[t]he Acting Chief Judge, acting on behalf of the Director,” J.A. 933 n.1, expanded the panel from three to five members, and the reconstituted panel set aside the earlier decision.
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 “is not directing individual judges to decide cases in a certain way.” 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’s 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.
Nidec v. Zhongshan, 2016-2321 (Fed. Cir. August 22, 2017)(slip. op. at pages 3-4 of Judge Dyk’s concurring opinion).
