In US v Arthrex, 2021 US Lexis 3123, the Supreme Court found that PTAB (Patent Trial and Appeals Board) should have been nominated by the President and confirmed by the Senate. But instead of invalidating thousands of PTAB decisions, the Court held that PTAB determinations are reviewable by the USPTO Director.
From our perspective, nothing much has changed. We continue to have the same system we’ve had for decades. PTAB rulings have always been reviewable as a matter of right by the DC District Court, by the Federal Circuit, and theoretically, by the Supreme Court. The big change is that they are now also reviewable by the USPTO director.
The experience at Fish IP (both when we’ve won and when we’ve lost) is that the PTAB judges are really good at what they do. They understand the technology, and are extremely well versed in patent law. It almost certainly happens that there are biases from time to time, but there isn’t any reason to believe that the PTAB judges would be less biased if appointed by the president and approved by the senate.