Arthrex Provides Little Strategic Value in the End
Today the PTAB issued interim guidance on adaptations to its rehearing practices. The interim procedures allow for a rehearing to be filed to the Director, this option can even be pursued after a failed rehearing to the assigned PTAB panel. So, good news for those parties seeking another path for delay. On the other hand, the Director is not going to change the outcome of cases beyond current practices (roughly 5% win rate on rehearing).
In essence, the Appointment’s Clause battle, much like the constitutional challenges to the PTAB posed in Oil States and Cuozzo, was a long road to nowhere.
The interim procedures provide a review may be initiated sua sponte by the Director or requested by a party to a PTAB proceeding. Parties may request Director review of a final written decision in an inter parties review or a post-grant review by concurrently (1) entering a Request for Rehearing by the Director into PTAB E2E and (2) submitting a notification of the Request for Rehearing by the Director to the Office by email to Director_PTABDecision_Review@uspto.gov, copying counsel for all parties by email.
The filed Request for Rehearing by the Director must satisfy the timing requirements of 37 C.F.R. 42.71(d), filing within 30 days of the entry of a final written decision or a decision on rehearing by a PTAB panel. A timely Request for Rehearing by the Director will be considered a request for rehearing under 37 C.F.R. 90.3(b) and will reset the time for appeal or civil action as set forth in that rule.
I’ve personally filed a rehearing after FWD in maybe one of 50 cases…if that. This option doesn’t make me any more likely to pursue one. If there is a mistake in the FWD of a magnitude that might catch the Director’s eye, I am confident that the Federal Circuit will see the same issue without the potential for adding further fact finding to the record against my interest.
All this option adds is a second round of rehearing filings for those seeking to delay final appellate review. Perhaps once the guidelines are finalized, the PTAB will add an option that anyone seeking panel rehearing waives the right to separate Director review. It makes little sense for the agency to accept serial rehearing requests on the back-end of a fast-track timeline.