Counsel Predict Leahy's PTAB Bill Will Pass, but With Changes

On September 29, 2021, senators Patrick Leahy and John Cornyn proposed to the U.S. Congress a new Patent Trial and Appeal Board (PTAB) bill that would eliminate discretionary denials under the NHK-Fintiv rule, establish standards for staying district court proceedings, and codify US v Arthrex. The bill would also address the issue of director review by requiring the director to issue a separate written opinion whenever the director issues a decision.

Managing Intellectual Property interviewed Finnegan partner and former lead administrative patent judge at the PTAB, Trenton Ward, to discuss the director review provision. Trenton explains that the provision will most likely remain in the final bill, because it will further codify what the Supreme Court of the United States (SCOTUS) has already said.

He further explains the significance of the provision due to its potential reduction of challenges to the USPTO’s use of director review.

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