ARTICLE · 22 FEBRUARY 2023

Review Delayed Is Not Review Denied

McDermott Will & Emery

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Considering whether the US Patent & Trademark Office (PTO) Director must complete review of the Patent Trial & Appeal Board's (Board) inter partes review (IPR) decision within the statutory deadline for a final written decision, the US Court of Appeals for the Federal Circuit concluded that the statute imposes no such requirement.

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Christopher M. Bruno

Considering whether the US Patent & Trademark Office (PTO) Director must complete review of the Patent Trial & Appeal Board's (Board) inter partes review (IPR) decision within the statutory deadline for a final written decision, the US Court of Appeals for the Federal Circuit concluded that the statute imposes no such requirement. CyWee Group Ltd. v. Google LLC et al., Case Nos. 20-1565, -1567 (Fed. Cir. Feb. 8, 2023) (Prost, Taranto, Chen, JJ.).

In 2018, Google filed two IPR petitions challenging certain claims of CyWee's patents. The Board issued its final written decisions in January 2020, determining that all challenged claims were unpatentable for obviousness. CyWee appealed to the Federal Circuit in March 2020. In addition to challenging the patentability decision, CyWee challenged the appointment of Board administrative patent judges (APJs) as unconstitutional in view of the Appointments Clause. In March 2021, the Court affirmed the Board's decisions and

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