by Dennis Crouch
The USPTO has released some implementation information for Arthrex. In its decision, the Supreme Court held that the USPTO Director has power to review any IPR decision by the PTAB. The Agency’s basic approach is as follows:
- At times, the PTO Director might initiate review of an IPR Decision sua sponte. This is unlikely.
- A party may request review of a final written decision for an IPR/PGR.
The request must be filed within 30-days of the PTAB’s final written decision or rehearing decision. The Agency has indicated that a request for review by the USpTO Director will be considered a request for rehearing under 37 C.F.R. 90.3(b) — that means that no appeal to the Federal Circuit will be due until after the Director acts on the request. In the short-term, the Office is not charging a fee for the request, but a fee will be added.
Request vs Petition: I’m not sure why, but the PTO is not identifying the Request for Review as a Petition for Review.
Pop-Panels and Ex Parte Proceedings: The Supreme Court identified inter partes review as demanding a process for PTO Director Review. However, it is clear that this extends to Post-Grant and Covered-Business-Method Reviews. It is unclear though whether it will extend to reexaminations or ordinary ex parte examination. I’m sure that the Director will still receive those petitions this month. The Office created Precedential Opinion Panels (POP) as a mechanism for giving the PTO Director more direct control over PTAB precedent. The Agency has indicated that the POP system remains in place for now, but is could be eliminated in favor of the simpler system of director review.
Webinar: PTO will host a webinar Thursday, July 1 at 10 a.m. ET on implementation. [LINK]