The NPRM proposals align with interim guidance on requesting director review for key AIA trial decisions. Following the Arthrex v. Smith & Nephew ruling, director review by the USPTO Director remains crucial for addressing constitutional concerns. Since its inception in 2021, director review has provided parties with a mechanism to seek rehearing of PTAB decisions.

As of April 1, 2024, the USPTO has handled 318 director review requests, with 18 granted. Notably, sua sponte director review was initiated in 35 cases. The proposed rule clarifies the impact of director review on AIA proceedings and outlines the timeline for appealing to the federal circuit. Additionally, the NPRM sheds light on the workings of the Director Review Advisory Committee.

Remember, parties can now opt for either director review or rehearing by the original panel, but not both. Third parties remain unable to participate in director review hearings without a director's invitation. Stay informed about these developments to navigate AIA proceedings effectively.

Comments on the proposed rule are due on or before June 17, 2024.

Ultimately, the NPRM proposals are consistent with the interim guidance and explain that parties may request Director Review of: “1) a decision on whether to institute an AIA trial, (2) a final written decision in an AIA proceeding, or (3) a panel decision granting a request for rehearing of a decision on whether to institute a trial or a final written decision in an AIA proceeding.” Third parties may still not participate in Director Review hearings unless invited to do so by the Director. Parties are also limited to requesting either Director Review or rehearing by the original panel, but not both.

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