Last week, the U.S. Patent Office (USPTO) Board of Patent Appeals and Interferences (BPAI) released released nineteen new patentability opinions. Each of opinion contained the following header:
The opinion in support of the decision being entered today is not written for publication and is not binding as precedent of the Board. (Emphasis in original).
In fact, there appear to be no "published" BPAI opinions issued within the last twelve months. (Ex Parte Eggert from May 2003 being the most recently published opinion). IP-Updates recently uncovered a 2003 article on point: Binding Precedent in the Trial Section of the BPAI. In the article, attorney Charles Gholz notes the "stunning fact about binding precedent in the Trial Section of the BPAI is that there is very little of it." Gholz provides a listing of seventeen binding cases for the period of 1999-2003 -- in contrast with thirty-one unpublished cases. According to law professor Carl Moy commented that "[a]t its root, the Board’s position seems to be at odds with the basic ways in which common-law adjudication works."
The BPAI is in the process of revamping the appeals procedure. Perhaps the changes will also result in a greater proportion of precedential opinions.