Recap: Post-Arthrex Director Reviews State of Play, PTAB Litigation Blog

Visit the PTAB Litigation Blog.

In a previous post from July 2021, we discussed the interim process for Director review in PTAB proceedings post-Arthrex. Since then, only three out of over 175 requests for Director review of a Final Written Decision have been granted, less than a 2% success rate. In November 2021, the Commissioner for Patents and acting Director of the USPTO, Andrew Hirshfeld, issued the first grant of a Petition for Director review on the PTAB’s analysis of the priority date of the patent at issue. In the same month, acting Director Hirshfeld issued a second order granting Director review to resolve an issue with the PTAB’s analysis of nonobviousness in light of a Federal Circuit ruling that vacated a finding of obviousness in a related patent. The third grant of Director review in March 2021 again implicated intervening precedent from the Federal Circuit. This time, the Federal Circuit had overturned the PTAB’s construction of claim terms in a related patent that were “substantially similar” to terms in the patent at issue.

Ben Baek in the San Francisco Office, assisted with the preparation of this Blog. 

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