SOP 2 (rev. 11): Designation or de-designation of decisions as precedential or informative

SOP 2 (Revision 11) sets the Board's procedure for nominating, reviewing and designating issued PTAB decisions as precedential or informative, and for de-designating them. Nominations go to an Advisory Committee and to PTAB Executive Management, which solicits Board member comments, and both make recommendations to the Director. No designation or de-designation takes effect without the Director's approval. Anyone, including petitioners, patent owners, applicants and appellants, may nominate a decision for designation or de-designation by email, and the nomination must state its reasons with particularity and identify any conflicting Board decisions. Parties need to know that a precedential decision is binding Board authority in later matters with similar facts or issues, while an informative decision sets norms to be followed in most cases absent justification but is not binding. A routine decision binds only the case in which it is made. The SOP rests on 35 U.S.C. §§ 2(b)(2)(A), 3(a)(2)(A), 3(b)(2)(A), 6, 316(a) and 326(a), and 5 U.S.C. § 552(a)(2)(A). It states that it creates no legally enforceable rights and does not limit the Director's authority to issue binding policy directives at any time. WHAT IT DOES: Any person may nominate a routine decision for precedential or informative designation, or an informative decision for precedential designation, by email to PTAB_Decision_Nomination@uspto.gov, setting out the reasons with particularity and identifying conflicting Board decisions. An Advisory Committee of at least 11 members (quorum of seven) recommends which decisions to review further. PTAB Executive Management (quorum of five) will, absent exceptional circumstances, solicit written Board comments during a review period typically of five business days. It then decides by majority vote whether to recommend designation. Both recommendations, with any dissenting views, go to the Director, who must approve. Designated decisions are labeled Precedential or Informative with the designation date, and posted on the Board's Precedential and Informative Decisions web page. De-designation follows a similar nomination route and requires Director approval, after which the decision is removed from the web page and the public is notified. WHO AND WHEN: It applies to Board decisions, meaning any decision, opinion or order, or rehearing decision, in all Board jurisdictions, including appeals, reexaminations, derivation proceedings, and inter partes and post-grant reviews. Any person, including Board members, USPTO employees and the public, may nominate. The document is Revision 11, published July 24, 2023. Decisions designated under a prior version of SOP 2 and not de-designated remain precedential or informative. KEY QUOTE: "A precedential decision is binding Board authority in subsequent matters involving similar facts or issues." (Section II.D, p. 7) EARLIER GUIDANCE AFFECTED: It refers to prior versions of SOP 2 and provides that decisions designated under them remain precedential or informative unless de-designated under section III. It also refers to PTAB Standard Operating Procedure 1 for conflicts of interest and to the Director Recusal Procedures. It does not otherwise name any rescinded document. PRACTICE TIP: If you want a decision to be treated as binding or as a Board norm, or want an obsolete one removed, send a nomination to the PTAB_Decision_Nomination@uspto.gov mailbox that states the reasons with particularity and identifies every conflicting Board decision you know of. Also check each decision's label and designation date, because only precedential decisions bind and informative ones are not binding.