On July 22, 2022, the USPTO released a Request for Comments (RFC) seeking public input on Director review, Precedential Opinion Panel (POP) review, and internal circulation and review of Patent Trial and Appeal Board (PTAB) decisions.
As set out in the RFC, “[t]he USPTO has implemented a number of processes that promote the accuracy, consistency, and integrity of PTAB decision-making in Leahy-Smith America Invents Act of 2011 (AIA) proceedings. The USPTO plans to formalize those processes through notice-and-comment rulemaking. To inform such rulemaking, and to inform any modifications to the interim processes pending formalization, the USPTO seeks public comments. Specifically, the USPTO seeks input on the current interim Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (Director) review process that allows a party to request Director review of a PTAB final written decision in inter partes review (IPR) or post-grant review (PGR) proceedings, and also provides the Director the option to sua sponte initiate the review of any PTAB decisions (at the Director’s discretion), including institution decisions and decisions on rehearing. The USPTO also seeks input on the Precedential Opinion Panel (POP) process. Finally, the USPTO seeks input on the current interim process for PTAB decision circulation and internal PTAB review. These processes, implemented by the PTAB prior to issuing decisions and implemented without Director input, are modeled after practices of the U.S. Court of Appeals for the Federal Circuit.”
The comment period was originally set to close on September 18, 2022, but the USPTO recently extended that deadline to October 19, 2022. Comments can be submitted through the portal at http://www.regulations.gov, and submitted comments can be reviewed at https://www.regulations.gov/document/PTO-P-2022-0023-0001/comment.