Supreme Court Leaves PTAB Intact, Gives USPTO Director Authority to Review IPR Decisions

June 24, 2021

A divided Supreme Court has issued its long-awaited decision in United States v. Arthrex, upholding the inter partes review (IPR) regime but giving the USPTO director much more power over the Patent Trial and Appeal Board (PTAB) in the process. On June 21, the Court ruled that the appointment of the PTAB’s administrative patent judges (APJs) violated the US Constitution’s Appointments Clause because the USPTO director lacked the ability to sufficiently review their decisions. The Court’s solution was to give the director the authority to review and rehear IPR final written decisions himself or herself. While this remedy largely leaves the IPR status quo intact, it could possibly increase the time it takes to resolve some AIA reviews already well underway.

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