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EU Agencies’ decision-making should have credibility with stakeholders and the public. Boards of Appeal (BOAs) play an important role in safeguarding the quality and credibility of Agencies’ decision-making, and the resultant confidence that stakeholders and the public can have in it. The amendment to the Statute of the Court of Justice of the European Union to include BOAs into the judicial architecture, denotes the confidence that the Courts have in the legal ability for BOAs to fulfil this role. Recent case-law from the EU Courts further underlines the importance of the role itself. This paper focuses on the clarified legal status of BOAs, their independence, the division of responsibilities between BOAs and their respective agencies, and the challenges – in practice – of bridging the legal expectations of BOAs, with the practical realities.

In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. In 2011, Congress created yet another novel agency tribunal—the Patent Trial and Appeal Board (PTAB)—to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.

This Comment seeks to resolve a dispute among district courts on how to interpret the term \"ground\" in 35 U.S.C. § 315(e)(2), the America Invents Act's (AIA) estoppel provision. The question of whether a party that asserts a printed publication or patent in an inter partes review (IPR) proceeding is estopped from asserting realworld prior art, such as a device, in a later civil action under § 315(e)(2) has resulted in a district court split. Some courts have construed the estoppel provision narrowly, reasoning that because a physical object like a device is not something that could have been raised during IPR, estoppel cannot apply. Under this interpretation, \"ground\" is interpreted to mean a piece of evidence. Because physical products are not the same type of evidence offered during IPR, litigants are not estopped from using them in later civil actions. On the other side of this, courts have determined that estoppel can apply, but does not in situations where the physical object being raised is either \"superior and separate\" or presents a \"substantive difference\" to the paper prior art raised in IPR. Here, \"ground\" is interpreted to mean argument, such that estoppel applies when the device offers no arguments other than those already put forth during IPR-in other words, when litigation would be duplicative. The resolution to this question carries significant consequences for the cost, efficiency, and institutional division of labor of the patent system. This Comment argues that the AIA's text and purpose support adopting the substantive difference approach. This approach strikes a workable balance in focusing on the legal arguments to ensure that litigants are not unduly relitigating the same arguments already decided by the Patent Trial and Appeal Board (PTAB). The substantive difference approach also advances the AIA's purpose in offering IPR as a cheaper, faster alternative to district court litigation. It also promotes a reasonable division of responsibilities between the PTAB and district courts. Overall, as this Comment explains, this interpretation best aligns with the patent system's goals.

This Article sheds new light on the long-running debate in EU legal studies about how intense the EU judicial review of complex and uncertain assessments requiring specialist knowledge could and should be. It argues that it is necessary to move beyond formulas and concepts hammered out in the judicial statements of reasons and consider how the institutional context affects legal epistemology. How likely is it that the judges form an independent opinion about the probative value of the presented evidence and the soundness of the administration’s specialist reasoning? How likely is it that their opinion is reliable? Answering these questions helps appraise the boundaries in which judicial review or proliferating administrative review by partly specialised boards of appeal foster the rule of law understood as the pursuit of non-arbitrariness. The Article examines recent case law of the EU Courts and the Board of Appeal of the European Chemical Agency concerning public health and environmental issues, in which complex and uncertain specialist assessments were prevalent. It contends that, due to institutional limitations of EU adjudicatory bodies, a further expansion of the rule of law in EU decision-making requiring specialist knowledge should be pursued through extra-judicial means fostering transparency, inclusiveness, and accountability.

Parties may challenge the validity of issued patents in federal courts and before the Patent & Trademark Office (PTO) and its administrative tribunal, the Patent Trial & Appeal Board (PTAB). Recently, the Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdiction over cases arising under the patent laws, has struggled to manage cases contested in parallel judicial and administrative proceedings. In Fresenius USA, Inc. v. Baxter International, Inc., the Federal Circuit held that a district court's judgment may be modified by an \"intervening\" judgment arising out of a parallel administrative proceeding unless all issues have been fully adjudicated in the district-court action. This requirement remains controversial. This Comment argues that none of the arguments for or against the Federal Circuit's finality rule are legally determinative. Given that the current debate need not define the scope of possibilities, the author proposed a more flexible rule that looks outside the parameters of this debate for a solution. [web URL: http://www.yalelawjournal.org/comment/reimagining-finality-in-parallel-patent-proceedings]

The EUIPO’s Boards of Appeal are called upon to decide on appeals against decisions by the bodies of ‘first instance’. However, their judicial function has always been denied. Conversely, the essay tends to place the Boards of Appeal of the EUIPO in any case within the concept of ‘court’, as defined by the ECtHR, within the framework of Article 6 ECtHR, because it assesses their independence, impartiality, and in general the guarantees required by the ‘fair trial’, until concluding that it is a paradigmatic model in the overall administration and judicial system. EUIPO Boards of Appeal, European Court of Human Rights, Court of Justice of the Eurpean Union, EU Charter of Fundamental Rights, Fair trial