Coke Morgan Stewart, named on Inauguration Day 2025 as deputy director of the U.S. Patent and Trademark Office (USPTO) and now serving as acting director of the USPTO, has already indicated that she will manage Director Review of decisions of the Patent Trial and Appeal Board (PTAB) in a different manner than her predecessor, particularly when it comes to delegation.
In fall 2024, the USPTO promulgated rules to govern Director Review of PTAB decisions. The rules went into effect on Oct. 31, 2024, as 37 C.F.R. § 42.75. Consistent with U.S. Supreme Court precedent, these rules establish that the Under Secretary of Commerce for Intellectual Property and Director of the USPTO may unilaterally review certain decisions of PTAB panels in proceedings brought under the American Invents Act of 2011. The rules also specify that the director may delegate that review.
Former USPTO Director Katherine K. Vidal (April 2022 – December 2024) delegated review sparingly, choosing to delegate only two requests while issuing Director Review decisions herself in over 60 cases.
The new administration appears to be taking a different tack. Stewart has already delegated review more frequently than her predecessor. In fact, in fewer than four months at the helm of the USPTO, Stewart has delegated Director Review in four cases.
These early indications suggest that delegation may take a more prominent role in how this administration implements Director Review.
Delegation of Director Review
Regulatory Basis
The Director Review rules, set forth in 37 C.F.R. § 42.75, explicitly allow the director to delegate review. Specifically, “[t]he Director may delegate their review of a decision provided in paragraph (a) of this section [which allows Director Review of certain PTAB decisions], subject to any conditions provided by the Director.” See 37 C.F.R. § 42.75(f). The accompanying Federal Register notice explains that this “rule allows the Director to delegate review at the Director’s discretion” and “provide[s] the Director a flexible approach to delegation.” 89 Fed. Reg. 79744 at 79747 (Oct. 1, 2024).
Current Guidance and Statistics
Consistent with this “flexible approach,” the USPTO explains the Director Review and Delegated Rehearing Panel (DRP) processes as currently implemented on its website. These pages are updated periodically to present current guidance and to reflect any process changes put into practice. Both pages were updated on March 5, 2025, and March 18, 2025, during Stewart’s tenure.
The USPTO also maintains a Director Review Status page that identifies all cases in which Director Review has occurred, including those that are delegated. The status page also hosts a spreadsheet showing the disposition of all Director Review requests filed with the USPTO.
Delegated Panels
The current process envisions that delegated reviews will be performed by a Delegated Rehearing Panel. Consistent with 35 U.S.C. § 6(c), each DRP includes three judges. According to the March 2025 update, the only judges available to sit on a DRP include the PTAB chief administrative patent judge (APJ), deputy chief APJ and vice chief APJs (PTAB typically had five vice chief APJs). Those serving in acting roles are not eligible for DRP paneling “unless the Chief Judge deems good cause renders it necessary.”
Other than drawing from this narrow pool of candidates, the DRP is paneled consistent with the typical procedures set forth in PTAB’s Standard Operating Procedure 1 (SOP 1). That procedure dictates that PTAB staff assign panels impartially and with consideration given to factors including, e.g., relevant technology, related cases, availability and necessity to avoid conflicts of interest. SOP 1 states that “no panel members shall be selected to influence an outcome.”
The DRP page states that the director’s decision to delegate review will be communicated in a delegation order. See, e.g., Mercedez-Benz USA, LLC v. Daedalus Prime LLC, IPR2023-01343, Paper 24 (Stewart Mar. 25, 2025). Likewise, the identity of the DRP members paneled on each delegated review are communicated in a panel identification order.
Decisions for Delegated Review
The DRP page explains that “[t]he Director is not limited as to which decisions may be delegated to the DRP for review.” For example, the director may delegate “a decision [that] does not present an issue that rises to a level requiring review by the Director but, nonetheless, warrants further consideration within the Board by an independent panel,” for instance, to consider whether a material issue of fact or law was misapprehended or overlooked by the original PTAB decision.
Additionally, “delegation may occur in cases where Director Review has been requested by a party, or may occur sua sponte, on the Director’s own initiative.” The Director Review Status page shows that, to date, Stewart has delegated review under both scenarios — three decisions were delegated after a party filed a Director Review request and one after the acting director initiated Director Review sua sponte.
Standard and Scope of Review
The DRP page explains that when reviewing a PTAB decision the DRP will apply the rehearing standard set forth in 37 C.F.R. § 42.71(d) to consider whether the original PTAB decision “misapprehended or overlooked” an issue that was addressed in previously filed papers. The DRP may consider a party’s Director Review request when evaluating the record. Although not stated explicitly, the DRP likely will also consider an opposing party’s response to a Director Review request, which the acting director now authorizes to be filed as of right.
The director may instruct the DRP to consider certain issues or questions in its review. Vidal declined to do so, but Stewart has done so in several delegation orders. See, e.g., Mercedez-Benz USA, LLC v. Daedalus Prime LLC, IPR2023-01343, Paper 24 at 2 (Stewart Mar. 25, 2025) (instructing the DRP to “determine whether the Board: (1) misapprehended or overlooked Petitioner’s claim construction arguments … and erred in construing the term, and (2) misapprehended or overlooked [the prior art’s] disclosure”).
DRP Decisions
Neither the applicable rules nor the DRP page specify a time by which a DRP decision must issue. To date, Stewart has ordered that DRP decisions issue quickly, within 30 days of the order that delegates review, absent good cause.
The DRP page instructs that the DRP will issue “a decision in the case (concluding its review) or, if appropriate, may remand to the Board for further proceedings.” The DRP itself can correct errors in the PTAB’s original decision or it may instruct the original panel to engage in further proceedings to resolve the issue.
Consistent with recent rulemaking, the DRP page confirms that “the DRP will make its decisions independently and without direction from the Director unless that direction is specifically set forth in a Director order.” See 37 C.F.R. §§ 43.3(a) (“Prior to issuance of a decision by a panel, the Director, Deputy Director, Commissioner for Patents, and Commissioner for Trademarks shall not communicate, directly or through intermediaries, with any member of the panel regarding the decision.”), 43.6 (“There shall be no unwritten Office or Board policy or guidance that is binding on any panel of the Board. All written policy and guidance binding on panels of the Board shall be made public.”).
Further Review of DRP Decisions
After the DRP issues its decision on review, a party may request rehearing of that decision pursuant to 37 C.F.R. § 42.71(d) but may not request Director Review of the DRP decision. Nonetheless, the director retains the authority to review a DRP decision sua sponte on Director Review. Finally, like other appealable decisions, DRP decisions reviewing PTAB final decisions may be appealed to the U.S. Court of Appeals for the Federal Circuit using typical procedures.
Delegation in This Administration
These are early days, and processes may well change when a confirmed director joins the agency. However, to date, Stewart has relied on USPTO’s Director Review delegation procedures at an unprecedented level. It remains to be seen whether this pace will continue. At this stage, certain expectations can be gleaned about the role of the Delegated Rehearing Panel in the new administration.
1. Delegated reviews are likely to address a variety of issues. Stewart has delegated review of both institution decisions and final written decisions. These delegations involved a wide variety of issues including institution discretion under 35 U.S.C. § 325(d), patentability under 35 U.S.C. § 101, claim construction and the proper application of prior art to the claim language. Thus, delegation may be used as a tool for further review of a variety of issues arising in PTAB decisions without requiring extensive director resources.
Other recent changes to PTAB process will likely lead to fewer requests for Director Review of discretionary institution issues because, under an “interim” process, the acting director herself will make such decisions. Nonetheless, the acting director’s delegation of review for other patentability, claim construction and prior art issues suggest that delegation will continue to be employed with a wide breadth in this administration, even if not for review of discretionary issues.
2. Delegated reviews are likely to move quickly. Stewart has moved quickly to address pending Director Review requests and to initiate sua sponte review within the timeline set forth by rule. See 37 C.F.R. § 42.75(b) (“Absent exceptional circumstances, any sua sponte Director Review will be initiated within 21 days after the expiration of the period for filing a request for rehearing pursuant to § 42.71(d).”). Additionally, as noted above, she imposed 30-day deadlines for DRP decisions, absent good cause. This “good cause” exception has not yet been invoked by a DRP. Given these considerations, DRP decisions under the current regime will likely issue relatively quickly after PTAB decisions are entered.
But given that only up to seven APJs are included in the pool of judges eligible to sit on a DRP and the potential volume of delegated reviews, it will be interesting to see whether the 30-day deadline becomes unworkable, necessitating the “good cause” exception.
3. Delegated reviews are likely to resolve issues, not remand.The two DRP decisions that issued during the Vidal administration remanded the proceeding to the original PTAB panel for further proceedings. This was consistent with Director Review decisions issued by Vidal herself, many of which provided guidance as to how the panel should resolve a legal or factual issue and which then remanded the proceeding to the panel to resolve those issues in the first instance, considering the director’s guidance.
By contrast, the three DRP decisions that have issued during Stewart’s tenure have resolved issues in the DRP decisions themselves and have not remanded to the original PTAB panel for further proceedings. This may simply reflect the relatively small sample size of DRP decisions under both administrations. It is equally possible that the DRP has followed the lead of the administration, in this case seeking to promote efficiency by streamlining decision-making when reasonably possible to do so. To that end, likely there will be more DRP decisions that resolve issues directly than be remanded to the original panel for further decision-making.
