As a result of the recent Supreme Court decision in U.S. v. Arthrex, Inc., the USPTO implemented an interim review procedure where review of a PTAB final written decision may be initiated by the Director or requested by a party to a PTAB proceeding.  In its first decisions on requests for Director review, the USPTO denied the requests and noted that “the Patent Trial and Appeal Board’s Final Written Decision in this case is the final decision of the agency.”  While the Patent Office has indicated that the Director on review has authority to address “any issue, including issues of fact and issues of law”, the acting Director declined to address any case-specific factual or legal issues in the decisions.  The cases are IPR2020-00081 and IPR2020-00320.

The decisions follow recent USPTO guidance on post-Arthrex review procedure which provides for the following:

  • The Director’s review may address any issue, including issues of fact and issues of law, and will be de novo.
  • The Request must be filed within 30 days of the entry of a final written decision or a decision on rehearing by a PTAB panel. 
  • After a final written decision is issued, a party may request Director review or, in the alternative, rehearing by the original PTAB panel.  If the party requests only Director review, and that review is not granted, it may not then request PTAB panel rehearing.  In the event panel rehearing is granted, parties will be permitted to request Director review of the panel rehearing decision whether or not they originally requested Director review.
  • There is no fee for filing a Request under the interim procedure. 
  • The interim procedure may change based on input from the public and experience with conducting Director reviews.

Additional details on the interim review process are provided on the USPTO Arthrex information page.