Two Director Review Rulings Give PTAB Petitioners a New Edge

The Supreme Court’s decision in Arthrex ruled that the director of the U.S Patent and Trademark Office (USPTO) had to be given the power to review Patent Trial and Appeal Board (PTAB) decisions. Since settling into her new role as USPTO director, Kathi Vidal has exercised this authority in seven cases, including two precedential decisions believed to favor petitioners in certain instances. Managing Intellectual Property interviewed Finnegan partners Tim McAnulty and Jeff Totten for their thoughts on Vidal’s recent decisions.

In Med-El v. Advanced Bionics, Vidal determined that the petitioner’s reliance on applicant admitted prior art (AAPA) was proper considering the USPTO’s 2022 guidance. Tim said these circumstances indicate that panels must address the merits of AAPA when petitioners raise them.

In UAB v. Bright Data, Vidal overturned the PTAB’s analysis of the factors set forth in General Plastic v Canon Kabushiki Kaisha. The decision suggests that Vidal wants more cases to be heard on the merits. Jeff believes parties may now be encouraged to seek PTAB review when they otherwise would have thought it was not an option.

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