Ruschke Out as Patent Board Chief Judge, Takes Advisory Post (2)

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By Malathi Nayak

Patent Trial and Appeal Board Chief Judge David P. Ruschke is stepping down to become a special adviser to the U.S. Patent and Trademark Office’s patent division, according to an agency email obtained by Bloomberg Law.

Deputy Chief Scott R. Boalick will be acting chief judge once Ruschke leaves office Sept. 2 until a new chief judge is appointed, agency director Andrei Iancu said in an internal email to employees. Vice Chief Judge Jacqueline Bonilla will be acting deputy chief, Iancu said in his email. The patent office declined to comment on the PTAB leadership change.

The shake-up comes as Iancu is pushing to change an administrative system that allows parties to challenge the validity of patents without going to federal court. The board hears such challenges, which are popular among tech companies such as Apple Inc. that are frequent targets of patent lawsuits, but unpopular among drugmakers such as AbbVie Inc. that rely on patents to fend off competitors.

Ruschke’s successor will play a major role in implementing any changes to the PTAB’s administrative patent challenge process.

Iancu told agency employees he wants better collaboration between the Office of the Commissioner for Patents, which examines and grants patent applications, and the PTAB, which hears administrative validity challenges to issued patents.

“While the PTAB and Patents have worked closely together to provide high-quality patent services, establishing a more direct channel between the business units will improve the free flow of information,” Iancu wrote in his email.

Ruschke will work closely with the PTAB, Iancu said. “David’s appointment to his new role is one development I believe will help our office provide and sustain a reliable patent system,” Iancu said.

Ruschke and Boalick didn’t immediately respond to Bloomberg Law requests for comment.

Ruschke was a former chief patent counsel for medical device company Medtronic’s coronary and structural heart unit before joining the PTAB as chief judge in May 2016. He was previously a patent attorney for Covington & Burling LLP.

Congress created the PTAB in a 2011 patent overhaul law as a specialized tribunal where anyone can challenge the validity of a patent. Lawmakers created the board as a quicker, lower-cost alternative to challenging patents in federal district courts.

Proposed PTAB Rules Underway

The PTO, under Iancu’s watch has been examining PTAB procedures, such as the board’s decision-making process and the procedures for amending claims in patent challenges.

The agency proposed new rules in May that, which if enacted would require the PTAB to interpret patent claims at the same stringent levels as do federal courts and the International Trade Commission. The PTAB applies the broadest reasonable interpretation standard in patent challenges to consider claims that define the limits of a patented invention. The courts and commission’s narrower Phillips standard will interpret a claim’s “plain and ordinary meaning,” as it would be read by a “person of ordinary skill in the art at the time of invention.”

The board’s prominence has grown amid controversy over the patent challenge system. It has 265 judges.

U.S. patent owners, including independent inventors and pharmaceutical companies, complain that their patents can be killed patents easily through PTAB challenges. But tech companies and startups worry that changing the PTAB process would make it harder for them to fend off patent litigation.

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