Federal Circuit Rejects Odyssey’s Late Attempt to Seek Director Review Under Arthrex

In Odyssey Logistics & Technology Corp. v. Stewart, No. 2023-2077 (Fed. Cir. Mar. 6, 2025), the Federal Circuit affirmed a district court’s dismissal of Odyssey’s challenge to the Patent Office’s denial of its request for Director review.

This is the second appeal involving Odyssey’s patent application. The first appeal, filed in 2019, addressed the examiner’s rejection of the application, which was affirmed by the PTAB. The Federal Circuit upheld the rejection in a decision dated February 7, 2020.

On June 28, 2021, more than a year after the Federal Circuit’s issued its mandate in the first appeal, Odyssey petitioned for Director review under the Supreme Court’s decision in United States v. Arthrex, Inc., 594 U.S. 1 (2021). Arthrex, which was decided on June 21, 2021, held that the Constitution’s Appointments Clause required that the PTAB’s decisions must be subject to review from the PTO’s Director.

The Patent Office denied the request as untimely. Odyssey then filed a complaint in the district court to compel Director review, which was dismissed for lack of subject matter jurisdiction. Odyssey appealed.

The Federal Circuit affirmed, holding that Odyssey had forfeited its Appointments Clause challenge by failing to raise it during its initial appeal. The Court explained that an Appointment Clause challenge is not jurisdictional, so it must be timely presented and preserved in a party’s opening brief. The fact that Arthrex hod not yet been decided at the time did not excuse Odyssey’s failure to timely raise the issue because Odyssey was aware of the case and the Appointments Clause challenge that was at its center. Thus, it knew that the Appointments Clause challenge was available to it during the first appeal.