What Will Arthrex Review Look Like?

Last week, the Supreme Court issued its decision in United States v. Arthrex, Inc. As explained in more detail in our June 24, 2021 post, after holding that "the unreviewable authority wielded by APJs during inter partes review is incompatible with their ap­pointment by the Secretary to an inferior office," the Court concluded that "the Director [must] have the discre­tion to review decisions rendered by APJs" in inter partes  reviews (IPRs). Slip Op. at 19, 21. Indeed, the Court appears to suggest that the Director's power to review decisions by the PTAB could be quite broad. For example, the Court explained that "[i]f the Director were to have the 'authority to take control' of a PTAB proceeding, APJs would properly function as in­ferior officers" and that "[t]he Director may engage in such review and reach his own de­cision." Id. at 21-22 (emphasis added). However, because such Director review was not set forth by Congress in the America Invents Act, this