SOP 4 (rev. 1): Procedure for Pre-Issuance Optional Decision Review and Post-Issuance Decision Review

SOP 4 (rev. 1) sets internal Board procedures for optional pre-issuance review of draft PTAB decisions, through a Circulation Judge Pool of non-management peer judges and a PTAB Management Pre-Issuance Optional Review team, and for post-issuance review of issued decisions by a Post-Issuance Review team. The panel keeps final authority over a decision's content, and the Director is not involved before issuance unless the Director is on the panel. The SOP governs how the Board administers itself and creates no legally enforceable rights. Even so, it tells petitioners and patent owners that pre-issuance feedback is optional, that it is requested only by a panel member, and that the Director does not direct panel decisions before issuance. It also explains how issued decisions may be flagged for sua sponte Director Review or policy clarification, and that concurring or dissenting views may matter to the Director when deciding whether to review. The SOP cites the Standards of Ethical Conduct at 5 CFR Part 2635 for conflicts and SOP 1 for paneling authority and conflicts guidance. WHAT IT DOES: Lets any panel member, at his or her sole discretion, circulate a draft decision to the Circulation Judge Pool (CJP) of non-management peer judges, typically reviewed by two members, and separately request input from a PTAB Management Pre-Issuance Optional Review team. Feedback is optional, and the panel decides whether and how to incorporate it. Judges remain required by their Performance Appraisal Plan to apply pertinent statutes, regulations, binding case law, and written Director guidance. The SOP says no unwritten agency or Board policy binds judges. The Director, Deputy Director, and Commissioners for Patents and Trademarks stay out of pre-issuance direction of panel decisions. A Post-Issuance Review team reviews issued decisions and may flag them to PTAB Executive Management, which decides whether to flag them to the Director for sua sponte Director Review or policy clarification. Team members with conflicts of interest are recused. WHO AND WHEN: Applies to PTAB judges and panels, the CJP (at least six non-management judges, typically one-year staggered terms), the Management Pre-Issuance Optional Review team, the Post-Issuance Review team, PTAB Executive Management, and the Director. It covers PTAB decisions before and after issuance. The document gives no separate effective date beyond its October 2023 listing as revision 1. KEY QUOTE: "There is no unwritten agency or Board policy or guidance applicable to PTAB proceedings that judges are required to apply." (p. 4) EARLIER GUIDANCE AFFECTED: None identified in the document. It refers to Standard Operating Procedure 1 for the delegation of paneling authority and for conflicts guidance, and to 5 CFR Part 2635 for conflicts of interest. As a "rev. 1" it is a revision, but the text does not name the version it replaces. PRACTICE TIP: Do not assume a Board decision reflects Director or management direction before issuance. If a decision looks inconsistent with authority or raises an issue of first impression, address it through the usual rehearing or Director Review routes. Remember that the SOP creates no enforceable rights, so it cannot support an argument about how a panel reached its decision.