USPTO Grants Second Petition For Director Review

Following the Supreme Court's June decision in U.S. v. Arthrex, which reigned in the "unreviewable authority wielded by the APJs during inter partes review[s]," the USPTO quickly set up an interim Director review process by which "[t]he Director [] may review final PTAB decisions and, upon review, may issue decisions himself on behalf of the Board." See  my prior See  my prior June 21, June 29, and July 21 posts on this topic. Since then acting Director Drew Hirshfeld has denied the vast majority of requests that he has received.  But, recently, two such requests for Director review have been granted.

In the first case between Ascend Performance and Samsung (order  here), the Board found claims 1-5 and 13-17 of U.S. Patent No. 9,819,057 unpatentable; however, the panel failed to separately consider "species claims 5 and 17 ..., which [Samsung argued] are entitled to the provisional priority date and antedate the Shimura reference."  Director Hirshfeld agreed