USPTO director reviews: Did OpenSky prompt a rethink?


Muireann Bolger

USPTO director reviews: Did OpenSky prompt a rethink?

Kathi Vidal’s explosive intervention in OpenSky v VLSI saw dormant concerns over the director review process resurface. Did she go too far, will she change tack, and what might a new-look process look like? Muireann Bolger speaks to lawyers from Wilson Sonsini Goodrich & Rosati, Haynes Boone, and Finnegan to find out more.

Hard on the heels of Kathi Vidal’s explosive sanctions against OpenSky in October came word that the US Patent and Trademark Office (USPTO) director would rethink key policies, including the director review process.

Stemming from the Supreme Court’s Arthrex ruling last year, the process hands the USPTO director a vast—and potentially burdensome—responsibility to review inter partes review (IPR) decisions.

As Jad Mills, partner at Wilson Sonsini Goodrich & Rosati, notes, no matter how large the appetite is for her to step in, the sheer volume of Patent Trial and Appeal Board (PTAB) cases make it “next to impossible” for the director to review all of the decisions.

USPTO, OpenSky, Kathi Vidal, VLSI, Arthrex, Supreme Court, IPR, PTAB, NHK-Fintiv, novel issues