PTO Starts Operating Under New AIA Rule at the End of October 2024
At the end of this month, on 31 October 2024, the USPTO will begin operating under a rule governing the process for Director Review of proceedings under the Leahy-Smith America Invents Act (AIA).
Following the decision three years ago of the U.S. Supreme Court in United States v. Arthrex, Inc., 141 S. Ct. 1970, 1986 (2021), the USPTO had to implement an interim process for Director Review of final written decisions in AIA proceedings. In Arthrex, the Supreme Court held that the Appointments Clause of the Constitution (art. II, sec. 2, cl. 2) and the supervisory structure of the USPTO require the Director, a principal officer of the United States, to have the ability to review the PTAB's final written decisions in IPR proceedings.
This new rule brings the USPTO practice into alignment with the Arthrex decision.
The rule amends part § 42 to set forth regulations governing the procedures for Director Review of decisions in AIA proceedings and provides that a party to an AIA proceeding may request Director Review in that proceeding of any:
Decision on institution
Final decision (defined as a final written decision in an inter partes or post grant review proceeding or a final decision in a derivation proceeding)
Decision granting rehearing of a decision on institution or a final decision
Other decision concluding an AIA proceeding
The rule further provides that the Director may initiate a review of such decisions on the Director’s own initiative and also provides that the Director may delegate a review.
