AIA美國改革法案之後產生很多新的程序，這些程序多半都是由AIA之後改名的PTAB所審理。（AIA之前為BPAI）
AIA之前的35 U.S.C. 6
35 U.S.C. 6 Board of Patent Appeals and Interferences.
(a) ESTABLISHMENT AND COMPOSITION.- There shall be in the United States Patent and Trademark Office a Board of Patent Appeals and Interferences. The Director, the Deputy Director, the Commissioner for Patents, the Commissioner for Trademarks, and the administrative patent judges shall constitute the Board. The administrative patent judges shall be persons of competent legal knowledge and scientific ability who are appointed by the Secretary of Commerce, in consultation with the Director.
(b) DUTIES.- The Board of Patent Appeals and Interferences shall, on written appeal of an applicant, review adverse decisions of examiners upon applications for patents and shall determine priority and patentability of invention in interferences declared under section 135(a). Each appeal and interference shall be heard by at least three members of the Board, who shall be designated by the Director. Only the Board of Patent Appeals and Interferences may grant rehearings
(c) AUTHORITY OF THE SECRETARY.—The Secretary of Commerce may, in his or her discretion, deem the appointment of an administrative patent judge who, before the date of the enactment of this subsection, held office pursuant to an appointment by the Director to take effect on the date on which the Director initially appointed the administrative patent judge.
(d) DEFENSE TO CHALLENGE OF APPOINTMENT.—It shall be a defense to a challenge to the appointment of an administrative patent judge on the basis of the judge's having been originally appointed by the Director that the administrative patent judge so appointed was acting as a de facto officer.
(d) DEFENSE TO CHALLENGE OF APPOINTMENT.—It shall be a defense to a challenge to the appointment of an administrative patent judge on the basis of the judge's having been originally appointed by the Director that the administrative patent judge so appointed was acting as a de facto officer.
AIA之後的35 U.S.C. 6
35 U.S.C. 6 Patent Trial and Appeal Board .
(a) IN GENERAL.--There shall be in the Office a Patent Trial and Appeal Board. The Director, the Deputy Director, the Commissioner for Patents, the Commissioner for Trademarks, and the administrative patent judges shall constitute the Patent Trial and Appeal Board. The administrative patent judges shall be persons of competent legal knowledge and scientific ability who are appointed by the Secretary, in consultation with the Director. Any reference in any Federal law, Executive order, rule, regulation, or delegation of authority, or any document of or pertaining to the Board of Patent Appeals and Interferences is deemed to refer to the Patent Trial and Appeal Board.
(b) DUTIES.--The Patent Trial and Appeal Board shall--
(1) on written appeal of an applicant, review adverse decisions of examiners upon applications for patents pursuant to section 134(a);
(2) review appeals of reexaminations pursuant to section 134(b);
(3) conduct derivation proceedings pursuant to section 135; and
(4) conduct inter partes reviews and post-grant reviews pursuant to chapters 31 and 32.
(c) 3–MEMBER PANELS.--Each appeal, derivation proceeding, post-grant review, and inter partes review shall be heard by at least 3 members of the Patent Trial and Appeal Board, who shall be designated by the Director. Only the Patent Trial and Appeal Board may grant rehearings.
(d) TREATMENT OF PRIOR APPOINTMENTS.--The Secretary of Commerce may, in the Secretary's discretion, deem the appointment of an administrative patent judge who, before the date of the enactment of this subsection, held office pursuant to an appointment by the Director to take effect on the date on which the Director initially appointed the administrative patent judge. It shall be a defense to a challenge to the appointment of an administrative patent judge on the basis of the judge's having been originally appointed by the Director that the administrative patent judge so appointed was acting as a de facto officer.
AIA前後的35 U.S.C. 134
35 U.S.C. 134 Appeal to the Patent Trial and Appeal Board Board of Patent Appeals and Interferences.
(a) PATENT APPLICANT.- An applicant for a patent, any of whose claims has been twice rejected, may appeal from the decision of the primary examiner to the Patent Trial and Appeal Board Board of Patent Appeals and Interferences, having once paid the fee for such appeal.
(b) PATENT OWNER.- A patent owner in any a reexamination proceeding may appeal from the final rejection of any claim by the primary examiner to the Patent Trial and Appeal Board Board of Patent Appeals and Interferences, having once paid the fee for such appeal.
(c) THIRD-PARTY.- A third-party requester in an inter partes proceeding may appeal to the Patent Trial and Appeal BoardBoard of Patent Appeals and Interferences from the final decision of the primary examiner favorable to the patentability of any original or proposed amended or new claim of a patent, having once paid the fee for such appeal.
美國專利法第6條、第134條規範了專利審判與上訴委員會（PTAB）的組成與職掌：
- USPTO轄下單位
- 組成有局長、副局長、專利委員、商標委員與行政專利法官（APJ）
- 行政專利法官具有法律背景與科學能力
- 職掌：
(1)審理專利申請的訴願書（通常是與USPTO不同的意見）
(2)審理再審案的訴願
(3)執行派生程序（derivation proceedings），可參閱：http://enpan.blogspot.tw/2012/09/derivation-proceeding.html
(4)執行IPR、PGR程序，可參閱：http://enpan.blogspot.tw/2012/08/blog-post_8.html - PTAB每次程序由三個委員共同組成審理
- 局長任命行政專利法官
- 專利申請案被兩次核駁後，可以對決定提出訴願，上訴到PTAB
- 專利權人可於再審（reexamination）程序終駁之後提出訴願
Ron
沒有留言:
張貼留言