Patent Trial and Appeal Board's Consistency-Enhancing Function

Agency heads, who have the primary responsibility for setting an agency’s policy preferences, have a variety of tools by which they attempt to minimize the discretion of their staff officials in an effort to ensure agency policy preferences are consistently applied. One such mechanism is subjecting agency official’s determinations to higher-level agency review. While scholars have long surmised that judges seek to minimize reversal of their decisions by a higher-level court, how agency officials’ decisions are influenced by higher level agency reconsideration has mostly eluded analysis.

In this Essay, we begin to fill this gap by examining the extent to which reversal by the Patent Office’s internal adjudicatory board, the Patent Trial and Appeal Board (“PTAB”), affects the behavior of patent examiners. Utilizing a novel database comprising of over 9,000 unique patent examiners and their decisions in over 1.3 million patent applications over a ten-year period, we examine this question. Given the growing concern in heterogeneity in patent examiner decision-making, understanding how PTAB reversal affects examiner behavior is important to ensuring that similar patent applications receive similar decisions at the Patent Office.