New Director to Review Hirshfeld Decisions?

Patent Owners that had the option to avail themselves of the new Director Review process under former interim Director Hirshfeld have been crying foul to the Federal Circuit. Their argument being that the Arthrex holding required a Senate confirmed Director Review, and that an interim Director (promoted from within) did not meet that criteria. Argument was heard a month or so back at the Federal Circuit on this issue.

Since that time, Senate confirmed Director Vidal has finally taken the wheel. Realizing this, the gov’t now hopes to pull the plug on these appeals.

In a filing this week ( here ) the gov’t explains that now that there is a politically appointed Director, the cases should be remanded so that the PO’s can simply have their day before the political appointee. Given the potential for complications across administrative agencies should the decision go against the gov’t, this suggestion may help avoid a huge hairball during transition of administrations…..until 2024 when someone else tries it.

As for the Patent Owners, well, they can certainly hold out hope for a different outcome this time. But, in my experience, the most likely outcome is the same decision with a different signature. That is, very few cases are so facially incorrect that the Director would find a need to grant rehearing.