Arthrex's Fallout - How Is The Supreme Court Decision Affecting Appeals?

The Supreme Court rendered its decision in Arthrex v. Smith & Nephew back in June and now the impact of that decision is becoming more clear. Arthrex had challenged the constitutionality of the appointment of administrative patent judges (APJs) who make up the Patent Trial and Appeal Board (PTAB). The Court determined that, in order for the appointment of APJs to be constitutional, the decisions rendered by APJs must be subject to review by the Director of the USPTO.

To comply with the decision, the USPTO created an interim procedure through which parties may petition to have a case reheard by the Director.¹ The interim guidance allows for a party in an IPR to petition the Director within 30 days of the entry of a final written decision. The Director may also initiate a review sua sponte. A party in an appeal before the CAFC may request the court to remand the case to the USPTO to request a rehearing before the Director, so long as the party properly preserved the