On June 21, 2021, the Supreme Court held the Director of the USPTO “may review final PTAB decisions and, upon review, may issue decisions himself on behalf of the Board.” United States v. Arthrex, Inc., 141 S. Ct. 1970, 1987 (2021) (holding that 35 U.S.C. § 6(c)—“Only the Patent Trial and Appeal Board may grant rehearings”—cannot be constitutionally enforced against the Director for inter partes review proceedings). In this way, the agency’s decisions now have the imprimatur of the President-appointed and Senate-confirmed Director, otherwise eliminating a constitutional infirmity under the Appointments Clause. U.S. Constitution, Art. II, § 2, cl. 2; see Arthrex, 141 S. Ct. at 1985–86. Of note, presently, Drew Hirshfeld, Commissioner for Patents, is performing the functions and duties of the Director and does not intend to defer Director review until a political appointee is confirmed. PTAB Boardside Chat (July 1, 2021) at 28:00–50.
To facilitate the Director’s review, the USPTO has outlined an interim procedure that the agency expects to evolve over time. See Arthrex Q&As, https://www.uspto.gov/patents/patent-trial-and-appeal-board/procedures/arthrex-qas (July 20, 2021); USPTO Implementation of an Interim Director Review Process Following Arthrex, https://www.uspto.gov/patents/patent-trial-and-appeal-board/procedures/uspto-implementation-interim-director-review. Presently, the interim procedures apply only to final written decisions in inter partes review, post-grant review, and covered business method review proceedings, not institution decisions. PTAB Boardside Chat (July 1, 2021) at 31:44–32:38, 52:53–53:15.
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