No Role For POP Post-Arthrex
As of Monday July 24th, the USPTO has discontinued the use of its Precedential-Opinion-Panel (POP) in favor of the interim Director Review (DR). This move was not unexpected as the POP panel (an early attempt to cure the Arthrex infirmity with partial Director oversight) was effectively replaced by the SCOTUS decision in Arthrex (Director Only).
In relying only on the DR moving forward, the PTAB has also decided to expand it to AIA institution decisions.
Moving forward, the revised DR process permits parties to request DR of PTAB decisions on institution in AIA proceedings. While technically and expansion of DR, this follows current practices in which the Director has addressed institution disputes sua sponte.
The Office has also provided updated guidance (here) as to what types of issues the Director will consider in DR, as well as additional guidance on various topics, such as the initiation of DR at the sole discretion of the Director (sua sponte DR), remands to PTAB for further proceedings, and sanction authority of the Director. The Office has also provided the Director the option to delegate review to a new independent panel called the Delegated Rehearing Panel (DRP).
On the ex parte side of the PTAB, a new Appeals Review Panel (ARP) is created that may be convened by the Director sua sponte, to review PTAB ex parte, reexamination, or reissue appeal decisions. This development mirrors DR procedures and is also designed to address the Arthrex infirmity
The USPTO will engage in a public notice and comment rulemaking process on these interim updates in the near future to allow stakeholders to weigh in on the changes.