USPTO reveals post-Arthrex review process

As a result of the recent Supreme Court decision in US v Arthrex, the US Patent and Trademark Office (USPTO) issued new interim procedures on Tuesday, June 29, that give the office’s director the authority to rehear final Patent Trial and Appeal Board (PTAB) rulings.

Parties in the proceedings may also request an inter partes review or post-grant review of the decision from the director.

This can be done by entering a Request for Rehearing by the Director using the PTAB end-to-end online tool and then flagging the request via an email found on the USPTO website.

Currently, the responsibilities of the USPTO director land on Drew Hirshfeld, who is the interim director and undersecretary of commerce for IP. He will remain in this position until a new permanent director is appointed.

To further clarify the process, the office also released a Q&A further detailing the review process and will be inviting more questions from the public in a PTAB “Boardside Chat” taking place on Thursday, July 1.

Arthrex decision

These interim changes have been implemented after the Supreme Court ruled that PTAB administrative patent judges (APJs) act as “principal officers”, meaning that their decisions are not reviewable by any higher body.

This violated the US Constitution’s appointments clause, which states that the power to issue such decisions should only be given to those appointed by the US President with the senates the advice of the senate.

As APJs are not appointed by the President, the decision was made to make final PTAB decisions reviewable by the USPTO director—a decision that divided the Supreme Court judges.

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