On June 29, 2021, the Office issued the following guidance on an interim Director review process following the Supreme Court's decision last week in United States v. Arthrex, Inc:
In this interim procedure, [Director] review may be initiated sua sponte by the Director or be requested a party to a PTAB proceeding. Parties may request Director review of a final written decision in an inter parties review or a post-grant review by concurrently (1) entering a Request for Rehearing by the Director into PTAB E2E and (2) submitting a notification of the Request for Rehearing by the Director to the Office by email to Director_PTABDecision_Review@uspto.gov, copying counsel for all parties by email.
Additional details on the interim Director review process can be found here. In that Q&A material, the office notes that "[t]he filed Request for Rehearing by the Director must satisfy the timing requirements of 37 C.F.R. 42.71(d), filing within 30 days of the entry of a final written decision or a decision on rehearing by a PTAB panel. A timely Request for Rehearing by the Director will be considered a request for rehearing under 37 C.F.R. 90.3(b) and will reset the time for appeal or civil action as set forth in that rule."
The Office's guidance states that a party can request Director review with panel hearing being sought as alternative relief (and in the event panel rehearing is granted, Director review will then be directly available). However, if a party requests only Director review and that request is not granted, there is no subsequent ability to request panel hearing. The Q&A material seems to suggest that serial panel rehearing and then Director review petitions may be allowed, but this point is not entirely clear. At present, the USPTO will not charge a fee for a request for Director review.
The PTAB is hosting a "Boardside Chat" webinar on Thursday, July 1, 2021, at 10 am ET to discuss the Arthrex decision, explain the interim procedure for Director review of PTAB decisions, and answer questions.
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