Supreme Court Decision on PTAB Appointments
In U.S. v. Arthrex, 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.
What Changed After the US v. Arthrex Decision?
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. They can be reviewed 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.
Experience With PTAB Judges in Patent Litigation
Our experience (when we’ve both won and 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. There are certainly biases from time to time. However, there’s no reason to believe that the PTAB judges would be less biased if appointed by the president and approved by the senate.