Chief Judge David Ruschke of the Patent and Trial Appeal Board
The chief judge of the Patent Trial and Appeal Board is taking a new role within the U.S. Patent and Trademark Office, the agency has confirmed.
David Ruschke “has graciously accepted the position of Senior Advisor to Patents,” PTO Director Andrei Iancu said in a statement Wednesday. Effective Sept. 2, The new position will serve as a bridge between the PTAB and the patent examination side of the PTO. “I look forward to working with David to improve intra-agency cooperation,” Iancu said in the statement.
The move gives Iancu the opportunity to place his own person at the top of a division that’s been a lightning rod in the patent world. Formerly the Board of Patent Appeals and Interferences, the PTAB was reorganized by the America Invents Act into a streamlined forum for challenging patent validity. The PTAB has been popular with companies sued for patent infringement but came under attack almost immediately from patent owners and others for being too aggressive in weeding out invalid patent claims.
Former Federal Circuit Chief Judge Randall Rader dubbed it a “death squad” for patent rights and bills that would defang the board have been regularly introduced in Congress. At a hearing before the U.S. Supreme Court last November, Chief Justice John Roberts questioned whether Ruschke should even be called a “judge.”
Ruschke was a longtime Medtronic IP attorney who took over from Acting Chief Judge Nathan Kelley in 2016. Under his leadership, the “kill rate” in AIA proceedings has dropped, and Ruschke personally signed onto an opinion last fall that clamped down on serial petitions, settling a major complaint among patent owners.
Ruschke “had the hardest job in patent law,” said Jonathan Stroud, chief IP counsel of Unified Patents. “He was in the middle of a lot of different interests, and he managed to do an honorable job, maintaining his integrity.”
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Latham & Watkins partner Bob Steinberg, a co-founder of the PTAB Bar Association, credited Ruschke with the outreach that was needed to get the bar group up and running. “I thought he did a great job,” Steinberg said.
Others noted that Ruschke revealed in a suit against his former employer, Medtronic, that he has a chronic heart condition, and that the job of PTAB chief judge is demanding, with much cross-country travel required.
Ruschke did not respond to an email seeking comment.
PTAB veterans Scott Boalick and Jacqueline Wright Bonilla will serve as acting chief judge and acting deputy chief, respectively.
Ruschke is the second high-profile member of PTO leadership to take a new position this summer. Kelley, the PTO’s solicitor, left the agency a few weeks ago, saying it was time to try something new. The agency’s former acting director, Joseph Matal, is serving as acting solicitor in the interim.
Iancu’s announcement said that Ruschke’s new position will help coordinate between PTAB and the Office of the Commissioner for Patents. It doesn’t offer many more specifics, though former PTAB member Neil Smith speculated that Ruschke could get involved in new procedures for amending patent claims during AIA proceedings.
Smith notes that on an outreach tour this summer, the PTAB began requesting feedback on whether patent examiners should get involved in the claim amendment process. “It seemed like an unusual and difficult-to-implement process,” Smith said, but it might be a window into what the PTO is thinking with Ruschke’s new position.
Correction: This story has been updated to correct Jonathan Stroud’s title.