What Happened
In 2021, the Supreme Court found that PTAB judges were unconstitutionally appointed—they were "principal officers" who should have been appointed by the President. The fix? Make them subject to review by the USPTO Director, who is properly appointed. Now the Director can review PTAB decisions, adding a new layer of oversight.
Why It Matters
Before Arthrex, PTAB decisions were final unless appealed to the Federal Circuit. Now parties can request Director review. It's discretionary—the Director doesn't have to take every case—but it's available for decisions that raise important legal questions, conflict with other decisions, or have policy implications.
About 10-15% of PTAB final decisions have Director review requests. The Director grants review in maybe 5-10% of those. When review is granted, some decisions are affirmed, some modified, some remanded. It's not a game-changer for most cases, but it's a meaningful option for the ones that raise significant issues.
The Director has used this power to provide guidance on PTAB practices—when to exercise discretion to deny institution, how to handle overlapping petitions, what standards apply to claim amendments. This creates more consistency across different PTAB panels.
What You Should Know
If you get an adverse PTAB decision, consider whether Director review makes sense. It's not for routine errors—the Federal Circuit is better for those. But if your case raises an important legal question or there's a conflict with other decisions, it might be worth requesting.
For patent owners, Director review adds another potential hurdle but also another opportunity. A favorable Director decision can provide precedent that helps in other cases.
The PTAB system is more complex now, but also more accountable. That's probably a good thing.