USPTO issues final rule on the Director Review process

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News Brief

USPTO issues final rule on the Director Review process

To advance the USPTO’s goal of ensuring fair, transparent, and efficient procedures throughout the Patent Trial and Appeal Board (PTAB), today we announced a final rule governing the process for Director Review of proceedings under the Leahy-Smith America Invents Act (AIA).

The Director Review process is an important way for parties to request rehearing of certain PTAB decisions. On April 16, 2024, we issued a Notice of Proposed Rulemaking seeking public input on proposed rules for Director Review of decisions in PTAB proceedings. Based on the comments and support received as a result, we are moving forward with the rulemaking process. 

The final rule formalizes key aspects of the interim Director Review process and provides that a party to an AIA proceeding may request Director Review in that proceeding of any: 

1. decision on institution
2. final decision (defined as a final written decision in an inter partes or post grant review proceeding or a final decision in a derivation proceeding)
3. decision granting rehearing of a decision on institution or a final decision
4. other decision concluding an AIA proceeding

The final rule further provides that the Director may initiate a review of such decisions on the Director’s own initiative (“sua sponte”); sets forth the timing and format of a party’s request for Director Review; addresses the impact of Director Review on the underlying PTAB proceeding; clarifies the time by which an appeal to the U.S. Court of Appeals for the Federal Circuit must be filed; and provides that the Director may delegate a review.

“We are grateful for the feedback we received from stakeholders leading up to formalizing the Director Review process,” said Under Secretary of Commerce for Intellectual Property and Director of the USPTO Kathi Vidal. “We are dedicated to continuing to refine PTAB procedures to make them as fair, transparent, and efficient as possible, for the benefit of all innovators.” 

The final rule is effective on October 31, 2024.

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