Andrei Iancu testifies during his confirmation hearing before the Senate Judiciary Committee to be under secretary of commerce for intellectual property and director of the U.S. Patent and Trademark Office on Nov. 29, 2017.  Photo: Diego M. Radzinschi/ALM

In case there was any doubt, USPTO Director Andrei Iancu is in charge at the Patent Trial and Appeal Board.

The U.S. Patent and Trademark Office announced revisions to PTAB procedures Thursday that formalize Iancu's control over the 250 administrative patent judges and their policy-making, while making that control more transparent.

“The revisions focus upon increasing transparency, predictability, and reliability across the USPTO,” the agency said in its announcement.

The primary change is the creation of a sort of PTAB appellate panel comprising Iancu, Commissioner of Patents Drew Hirshfeld, and the PTAB's chief judge, a position that's currently vacant. Those three or their designees will have the authority to make PTAB panel decisions precedential, or to reconsider panel decisions and issue their own precedential opinions.

Scott McKeown, the chairman of Ropes & Gray's PTAB group, said the Precedential Opinion Panel solves several problems. One is that the PTAB wasn't issuing enough precedent to help practitioners. The previous rules for designating a precedential opinion, which required a majority vote of the board, was drawn up when the PTAB numbered 30 or 40 administrative judges. Now at 250 judges thanks to the America Invents Act, the board could find agreement on only about five precedential opinions a year.

Second is that the strategy the board used to get around that problem—expanding the panels in important cases by adding judges from PTAB leadership—was highly unpopular. While McKeown thinks the criticisms were somewhat overblown, “the board recognized a while back that just looks bad.”

Finally, the new procedures will defuse another nascent criticism: that PTAB judges are constitutional officers under the Supreme Court's Lucia v. SEC decision who should be subject to Senate conformation. The new procedures “make it clear the political appointee is running the show, because that's the way it's supposed to work. That's the way other agencies work,” McKeown said. He cited the International Trade Commission, which reviews its ALJs' decisions, as an example.

Along with the Precedential Opinion Panel, the PTAB also issued detailed new procedures that spell out how judges are assigned or reassigned to cases, while making clear that “an expanded panel is not favored and ordinarily will not be used.”

William Atkins, a Pillsbury Winthrop Shaw Pittman partner and author of “The PTAB Handbook,” said he's “grateful to see panel stacking going by the wayside.” He said it was unsettling to have additional judges appear in a case without prior notice. “Now there's a policy and an explanation,” he said.

And the decisions will come from “a consistent, core group of people,” Baker Botts partner Eliot Williams said.

Williams said it's probably too early to assess the Precedential Opinion Panel. For one thing, it's not clear yet how often it intends to weigh in. “Overall,” he said, “I think everyone should be happy to see the transparency in how the board is going to operate on these issues.”