In the realm of patent law, Director Review (DR) decisions have become increasingly significant in 2024. This shift in focus from spontaneous DRs to party-initiated DRs has been observed and analyzed by stakeholders in the field.
Before the Supreme Court’s ruling in United States v. Arthrex, Inc. in 2021, the DR process was not a prominent mechanism for reviewing decisions made by the Patent Trial and Appeal Board (PTAB). However, following the Arthrex decision, the US Patent and Trademark Office (USPTO) implemented an interim DR process, which was later revised and formalized through rulemaking in April 2024.
Stakeholders have been closely watching these developments, and many PTAB users have taken the initiative to submit DR requests for both institution decisions and final written decisions. Director Vidal has also played an active role in identifying DR cases through sua sponte reviews.
Analyzing the trends in DR requests reveals some interesting patterns. There has been a slight increase in DR requests by petitioners, while requests by patent owners have decreased. Sua sponte DRs were common in 2022 and 2023 but have not been as prevalent in 2024. By June 2023, the Director had already initiated 10 sua sponte DRs. It remains to be seen whether the Director will continue to identify cases independently or rely on the parties involved to bring forth suitable DR candidates.
A closer look at the data on a monthly basis shows a significant rise in DR requests following the release of revised interim DR guidelines in July 2023.
When it comes to the granting of DR requests, party-initiated requests are mostly denied. Petitioners have had more success than patent owners, with a higher percentage of Petitioner-initiated DR requests being granted in 2024.
The Director’s recent focus on reviewing institution decisions has led to an increase in granted DR requests from petitioners who feel aggrieved. Most of the recently granted DR requests relate to institution denials.
In addition to reviewing institution decisions, the DR process now allows for certain decisions to be delegated to the Delegated Rehearing Panel (DRP) created by the Director. Two DR decisions in 2024 were delegated to the DRP, both related to institution decisions by the Board.
As we look ahead, it will be interesting to see how the landscape of DR decisions continues to evolve. Will the trend towards party-initiated DRs persist, or will the Director intervene spontaneously in new areas? The delegation of certain decisions to the DRP will also be worth monitoring to see if it remains a channel for addressing more nuanced issues compared to broader guidance provided by the Director through personal DRs.