Federal Circuit Approves Interim-Director Director Reviews, PTAB Litigation Blog
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The Federal Circuit’s decision on May 27, 2022 in Arthrex Inc. v. Smith & Nephew Inc. et al., set forth that Patent Commissioner, Drew Hirshfeld, was within the bounds of the U.S. Supreme Court’s United States v. Arthrex ruling when exercising his discretion regarding U.S. Patent and Trademark Office (“USPTO”) director reviews. Arthrex, which was decided in June 2021, established that any Patent Trial and Appeal Board (“PTAB”) decision that the USPTO disagrees with is reviewable by a Presidentially-approved and Senate-confirmed (“PAS”) officer; the USPTO Director qualifies as a PAS officer. The Supreme Court remanded the case to lower court, where Arthrex requested a rehearing by the USPTO Director, who at this time was Hirshfeld serving as interim director. Hirshfeld’s position as Patent Commissioner is a non-PAS officer role.
Kaylee Rabatin, a summer associate in the Pittsburgh Office, assisted with the preparation of this Alert.
