The patent world has been waiting, anxiously, to find out whether the entire appellate process would be thrown out when the supreme court justices considered if judges on the patent board of appeals had to be appointed by the President and confirmed by the U.S. Senate.
As it turned out, the long awaited decision in Arthrex probably won't change much. The decision is a fizzle!
The court adeptly side-stepped the thornier issues.
Instead, the court gave the Commissioner of patents an implied authority to review decisions of the patent board of appeals. The Commissioner is appointed by the President. So, giving the Commissioner discretionary authority to review decisions of the board of appeals solved the Constitutional issue, even if the discretion is never actually exercised.
Since review is entirely discretionary with the Commissioner, we will have to wait and see if any decisions are actually reviewed. However, we didn't have to wait long for an interim procedure.
See the announcement below...
As a result of the recent Supreme Court decision in U.S. v. Arthrex, Inc., the United States Patent and Trademark Office (USPTO) has implemented an interim procedure whereby review of a Patent Trial and Appeal Board (PTAB) final decision may be initiated sua sponte by the Director or requested a party to a PTAB proceeding. At this time, a party may request Director review of a final written decision in an inter partes review or post-grant review by filing a request for rehearing by the Director of a PTAB decision and concurrently submitting a notification of that request to the Office by email to Director_PTABDecision_Review@uspto.gov, copying counsel for the parties.