79744 Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Rules and Regulations 

1As discussed below, as used in the final rule, 

‘‘final decision’’ is defined as both final written 

decisions under 35 U.S.C. 318, 328, for inter partes 

review and post grant review proceedings, and also 

final decisions under 35 U.S.C. 135, for derivation 

proceedings. 

2The PTAB was previously known as the Board 

of Patent Appeals and Interferences. 

AIRAC date State City Airport FDC No. FDC date Procedure name 

31–Oct–24 .... MN Morris ...................... Morris Muni/Charlie Schmidt 

Fld.

4/6539 8/27/2024 VOR RWY 14, Amdt 2. 

31–Oct–24 .... MN Morris ...................... Morris Muni/Charlie Schmidt 

Fld.

4/6540 8/27/2024 VOR RWY 32, Amdt 6. 

31–Oct–24 .... FL Wauchula ................ Wauchula Muni ....................... 4/6914 7/5/2024 RNAV (GPS) RWY 18, Amdt 1D. 

31–Oct–24 .... FL Wauchula ................ Wauchula Muni ....................... 4/6915 7/5/2024 RNAV (GPS) RWY 36, Amdt 1D. 

31–Oct–24 .... AL Andalusia ................ South Alabama Rgnl At Bill 

Benton Fld.

4/7059 7/29/2024 NDB–A, Amdt 4. 

31–Oct–24 .... AL Andalusia ................ South Alabama Rgnl At Bill 

Benton Fld.

4/7060 7/29/2024 COPTER NDB RWY 29, Orig-A. 

31–Oct–24 .... NY Rochester ............... Frederick Douglass/Greater 

Rochester Intl.

4/7551 5/22/2024 ILS OR LOC RWY 4, ILS RWY 4 

(SA CAT I), ILS RWY 4 (CAT 

II), Amdt 21B. 

31–Oct–24 .... NY Rochester ............... Frederick Douglass/Greater 

Rochester Intl.

4/7552 5/22/2024 RNAV (GPS) RWY 4, Amdt 2B. 

31–Oct–24 .... GA Sylvania .................. Plantation Airpark .................... 4/8737 7/9/2024 RNAV (GPS) RWY 5, Amdt 1. 

31–Oct–24 .... MO Bowling Green ........ Bowling Green Muni ................ 4/8755 8/14/2024 RNAV (GPS) RWY 13, Amdt 1. 

31–Oct–24 .... MO Bowling Green ........ Bowling Green Muni ................ 4/8757 8/14/2024 RNAV (GPS) RWY 31, Amdt 1. 

31–Oct–24 .... PA Wilkes-Barre ........... Wilkes-Barre Wyoming Valley 4/9312 7/30/2024 RNAV (GPS) RWY 25, Orig-E. 

[FR Doc. 2024–22462 Filed 9–30–24; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF COMMERCE 

Patent and Trademark Office 

37 CFR Part 42 

[Docket No. PTO–P–2024–0014] 

RIN 0651–AD79 

Rules Governing Director Review of 

Patent Trial and Appeal Board 

Decisions 

AGENCY: United States Patent and 

Trademark Office, Department of 

Commerce. 

ACTION: Final rule. 

SUMMARY: The United States Patent and 

Trademark Office (USPTO or Office) is 

adding a new rule to govern the process 

for the review of Patent Trial and 

Appeal Board (PTAB or Board) 

decisions in Leahy-Smith America 

Invents Act (AIA) proceedings by the 

Under Secretary of Commerce for 

Intellectual Property and Director of the 

United States Patent and Trademark 

Office (Director). The new rule promotes 

the accuracy, consistency, and integrity 

of PTAB decision-making in AIA 

proceedings. 

DATES: This rule is effective October 31, 

2024. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Krause, Director Review 

Executive; Kalyan Deshpande, Vice 

Chief Administrative Patent Judge; or 

James Worth, Acting Senior Lead 

Administrative Patent Judge, at 571– 

272–9797. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Following the decision of the U.S. 

Supreme Court in United States v. 

Arthrex, Inc., 141 S. Ct. 1970, 1986 

(2021) (‘‘Arthrex’’), on June 29, 2021, 

the USPTO implemented an interim 

process for Director Review of final 

written decisions in AIA proceedings. 

To promote the accuracy, consistency, 

and integrity of PTAB decision-making 

in AIA proceedings, the USPTO then 

issued an updated ‘‘Interim Process for 

Director Review’’ on April 22, 2022. The 

updated interim process set forth 

guidance for parties who wished to 

request Director Review. This guidance 

increased clarity as the Office continued 

to update and improve the process 

based on experience and initial 

stakeholder feedback. The USPTO 

subsequently issued a Request for 

Comments (RFC) seeking public input 

on Director Review. 87 FR 43249–52 

(July 20, 2022); 87 FR 58330 (Sept. 26, 

2022) (extending comment period). 

Based on experience and in light of 

stakeholder feedback received in 

response to the RFC, on July 24, 2023, 

the USPTO modified the interim 

Director Review process to allow parties 

to request Director Review of decisions 

on institution in AIA proceedings. The 

USPTO then issued a Notice of 

Proposed Rulemaking (NPRM) on April 

16, 2024, taking into consideration the 

feedback received in response to the 

RFC. Following the proposed rule and 

solicitation of public comments, 89 FR 

26807 (Apr. 16, 2024), this final rule 

implements, in regulation, key aspects 

of the processes used for Director 

Review. 

This final rule provides that a party to 

an AIA proceeding may request Director 

Review in that proceeding of any: (1) 

decision on institution, (2) final 

decision,1 (3) decision granting 

rehearing of a decision on institution or 

a final decision, or (4) other decision 

concluding an AIA proceeding. In 

addition, the final rule provides that the 

Director may sua sponte (on their own 

initiative) initiate a review of such 

decisions. The final rule also sets forth 

the timing and format of a party’s 

request for Director Review. The final 

rule addresses the impact of Director 

Review on the underlying proceeding at 

the PTAB, as well as the time by which 

an appeal to the U.S. Court of Appeals 

for the Federal Circuit must be filed. 

The final rule also provides that the 

Director may delegate a review. 

Background 

On September 16, 2011, Congress 

enacted the AIA (Pub. L. 112–29, 125 

Stat. 284 (2011)). The AIA established 

the PTAB,2 which is made up of 

administrative patent judges (APJs) and 

four statutory members, namely the 

Director, the Deputy Director, the 

Commissioner for Patents, and the 

Commissioner for Trademarks. 35 

U.S.C. 6(a). The Director is appointed by 

the President, by and with the advice 

and consent of the Senate. 35 U.S.C. 

3(a)(1). APJs are appointed by the 

Secretary of Commerce in consultation 

with the Director. Id. section 6(a). The 

PTAB hears and decides ex parte 

appeals of adverse decisions by 

examiners in applications for patents, 

applications for reissue, and 

reexamination proceedings, and 


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3This web page was superseded by the ‘‘Revised 

Interim Director Review Process’’ web page, 

discussed below, but remains available at 

www.uspto.gov/patents/patent-trial-and-appealboard/procedures/arthrex-qas. 4This web page was also superseded by the 

‘‘Revised Interim Director Review Process’’ web 

page. 5Request for Comments on Director Review, 

Precedential Opinion Panel Review, and Internal 

Circulation and Review of Patent Trial and Appeal 

Board Decisions. 87 FR 43249–52 (July 20, 2022). 6The USPTO established the POP review process 

in 2018 and set forth that process in the Board’s 

Standard Operating Procedure 2, revision 10. The 

POP process was used to establish binding agency 

authority concerning major policy or procedural 

issues, or other issues of exceptional importance in 

the limited situations where it was appropriate to 

create such binding agency authority through 

adjudication before the PTAB. The USPTO retired 

the POP process on July 24, 2023, in view of the 

interim Director Review process. 

7Available at www.federalregister.gov/ 

documents/2022/07/20/2022-15475/request-forcomments-on-director-review-precedential-opinionpanel-review-and-internal-circulation. 

8As used herein, the term ‘‘Director Review web 

page’’ encompasses both the Revised Interim 

Director Review Process web page and the new 

Director Review web page. The Revised Interim 

Director Review Process web page remains in effect 

until the effective date of this rule, after which the 

new Director Review web page will publish and 

become effective. 

conducts proceedings under the AIA, 

including inter partes reviews (IPRs), 

post grant reviews (PGRs), and 

derivation proceedings, all in panels of 

at least three members. Id. sections 6(b), 

(c). Under the statute, the Director 

designates the members of each panel. 

Id. section 6(c). The Director has 

delegated that authority to the Chief 

Judge of the PTAB. See PTAB Standard 

Operating Procedure 1 (Rev. 16) (SOP 

1), Assignment of Judges to Panels, 

available at www.uspto.gov/sites/ 

default/files/documents/sop1_r16_

final.pdf. 

35 U.S.C. 6(c) states that ‘‘[o]nly the 

Patent Trial and Appeal Board may 

grant rehearings’’ of Board decisions. In 

Arthrex, the Supreme Court held that 

the Appointments Clause of the 

Constitution (art. II, sec. 2, cl. 2) and the 

supervisory structure of the USPTO 

require the Director, a principal officer 

of the United States, to have the ability 

to review the PTAB’s final written 

decisions in IPR proceedings. See 

Arthrex, 141 S. Ct. at 1986. The Court 

determined that ‘‘35 U.S.C. 6(c) is 

unenforceable as applied to the Director 

insofar as it prevents the Director from 

reviewing the decisions of the PTAB on 

[the Director’s] own.’’ Id. at 1987. The 

Court added that: 

this suit concerns only the Director’s ability 

to supervise APJs in adjudicating petitions 

for inter partes review. We do not address the 

Director’s supervision over other types of 

adjudications conducted by the PTAB, such 

as the examination process for which the 

Director has claimed unilateral authority to 

issue a patent. 

Id. The Court thus held that ‘‘the 

Director has the authority to provide for 

a means of reviewing PTAB decisions’’ 

in IPR proceedings and ‘‘may review 

final PTAB decisions and, upon review, 

may issue decisions . . . on behalf of 

the Board.’’ Id. Additionally, the Court 

in Arthrex made clear that ‘‘the Director 

need not review every decision of the 

PTAB,’’ nor did it require the Director 

to accept requests for review or issue a 

decision in every case. Id. at 1988. 

Instead, ‘‘[w]hat matters is that the 

Director have the discretion to review 

decisions rendered by APJs.’’ Id.; see 

Arthrex, Inc. v. Smith & Nephew, Inc., 

35 F.4th 1328, 1338 (Fed. Cir. 2022) 

(noting same); CyWee Grp. Ltd. v. 

Google LLC, 59 F.4th 1263, 1268 (Fed. 

Cir. 2023) (‘‘[T]he Appointments Clause 

was intended to prevent unappointed 

officials from wielding too much 

authority, not to guarantee procedural 

rights to litigants, such as the right to 

seek rehearing from the Director.’’ 

(quoting Piano Factory Grp., Inc. v. 

Schiedmayer Celesta GmbH, 11 F.4th 

1363, 1374 (Fed. Cir. 2021)). 

Following the Arthrex decision, on 

June 29, 2021, the USPTO implemented 

an interim process for Director Review 

of final written decisions in IPR or PGR 

proceedings and published Arthrex 

Questions and Answers (Q&As), 

available on a USPTO web page.3 On 

April 22, 2022, the USPTO published 

two web pages to replace the Arthrex 

Q&As. Specifically, the USPTO 

published an ‘‘Interim Process for 

Director Review’’ web page,4 setting 

forth more details on the interim 

process and additional suggestions and 

guidance for parties who wish to request 

Director Review. The updated interim 

process guidance increased clarity as 

the Office continued to update and 

improve the interim Director Review 

process based on experience and initial 

stakeholder feedback. The USPTO also 

published a web page providing the 

status of all Director Review requests, 

available at www.uspto.gov/patents/ 

patent-trial-and-appeal-board/statusdirector-review-requests (status web 

page). The Director Review status web 

page includes a spreadsheet that is 

updated monthly and presents 

additional information about the 

proceedings in which Director Review 

has been granted. 

On July 20, 2022, the USPTO issued 

an RFC 5 on Director Review, 

Precedential Opinion Panel (POP) 

review,6 and the internal circulation 

and review of PTAB decisions. 87 FR 

43249–52.7 Based on experience and in 

light of stakeholder feedback received in 

response to the RFC, on July 24, 2023, 

the USPTO modified the interim 

Director Review process to allow parties 

to request Director Review of decisions 

on institution in AIA proceedings, and 

to introduce a process by which the 

Director may delegate review of a Board 

decision to a Delegated Rehearing Panel 

(DRP). See ‘‘Revised Interim Director 

Review Process’’ web page (available at 

www.uspto.gov/patents/ptab/decisions/ 

revised-interim-director-review-process) 

(Director Review web page); 8

‘‘Delegated Rehearing Panel’’ web page 

(available at www.uspto.gov/patents/ 

ptab/decisions/delegated-rehearingpanel). The USPTO made additional 

updates to the interim Director Review 

process on September 18, 2023, 

(updating processes related to Director 

Review of PTAB decisions on remand 

from the Director), January 19, 2024, 

(updating processes related to requests 

for rehearing of Director Review 

decisions), and April 16, 2024, 

(providing step-by-step instructions on 

how to file a request for Director 

Review). 

Request for Comments 

As noted above, on July 20, 2022, the 

Office published an RFC on Director 

Review, POP review, and the internal 

circulation and review of PTAB 

decisions. 87 FR 43249–52. The USPTO 

received 4,377 comments from 

intellectual property organizations, 

trade organizations, other organizations, 

and individuals, on all aspects of the 

RFC, including twelve specific 

responses to questions 2–12 related to 

Director Review or POP review. All 

comments are publicly available at the 

Federal eRulemaking Portal at 

www.regulations.gov/docket/PTO-P2022-0023/comments. A summary of the 

pertinent comments is available in the 

NPRM at www.regulations.gov/ 

document/PTO-P-2024-0014-0001. 89 

FR 26807 (Apr. 16, 2024). 

Proposed Rule: Comments and 

Responses 

On April 16, 2024, after careful 

consideration of the public input 

received in response to the RFC, the 

USPTO published a notice of proposed 

rulemaking to set forth key aspects of 

the processes used for Director Review. 

See 89 FR 26807. The notice of 

proposed rulemaking provided for a 60- 

day comment period. 

The Office received a total of 12 

comments from eleven organizations 

and one individual. The Office 

appreciates the thoughtful comments 

representing views from various public 

stakeholder communities. The 


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9The Appeals Review Panel may be convened by 

the Director sua sponte to review PTAB decisions 

in ex parte appeals, re-examination appeals, and 

reissue appeals. See www.uspto.gov/patents/ptab/ 

appeals-review-panel. 

comments are publicly available at the 

Federal eRulemaking Portal at 

www.regulations.gov/document/PTO-P2024-0014-0001. 

Commenters were generally 

supportive of the proposed rule and 

agreed that the rule would promote the 

accuracy, consistency, and integrity of 

PTAB decision-making in AIA 

proceedings. Some commenters 

suggested expanding the scope of 

Director Review, for example, to include 

decisions on ex parte appeals and 

reexamination appeals. A summary of 

the comments and the Office’s 

responses are provided below. The 

Office’s responses address the 

comments that are directed to the 

proposals set forth in the NPRM. Any 

comments directed to topics beyond the 

scope of the NPRM are not addressed. 

Comment 1: Four commenters 

suggested adding formal standards of 

review to the rule, with various 

standards proposed. Two commenters 

recommended expressly incorporating 

the standards of review currently set 

forth in the interim Director Review 

process. A third commenter 

recommended a de novo standard of 

review for any questions of law and a 

more deferential standard of clear error 

for questions of fact with respect to final 

written decisions. The same commenter 

also recommended applying a 

deferential standard, such as abuse of 

discretion, for review of decisions 

granting institution. A fourth 

commenter recommended the rule 

specify de novo review for all Director 

Review decisions. 

Response: The Office appreciates 

these thoughtful comments, but does 

not adopt the suggestions at this time. 

The Supreme Court’s Arthrex decision 

necessitates that the Director be able to 

review decisions in AIA proceedings 

but Arthrex does not limit or prescribe 

the manner or standard by which the 

Director conducts that review. 

Moreover, the comments identify 

different standards of review and do not 

identify a single consensus approach. 

The rule provides the Director with 

flexibility as to the standards of review 

to be applied in the Director Review 

process. The Office will continue to 

provide guidance on any applicable 

standard through the Director Review 

web page consistent with the final rule. 

Comment 2: One commenter 

suggested adding a provision to the rule 

to state that Director Review decisions 

will be made precedential only when 

the Director determines that there is a 

compelling need to set binding policy. 

Another commenter likewise expressed 

support for a rule that Director Review 

decisions are not precedential by 

default. 

Response: The Office appreciates the 

comments, but does not adopt the 

suggestion to include a provision in the 

rule related to the designation of 

Director Review decisions. Currently, 

Director Review decisions are, by 

default, routine decisions as set forth in 

Standard Operating Procedure 2, and 

are designated precedential only at the 

Director’s determination. See PTAB 

Standard Operating Procedure 2 (Rev. 

11) (SOP 2), Designation or Dedesignation of Decisions as Precedential 

or Informative, available at 

www.uspto.gov/sites/default/files/ 

documents/20230724_ptab_sop2_rev11_

.pdf; see also Revised Interim Director 

Review Process web page section 5.B. 

To date, the Office has designated only 

seven Director Review decisions as 

precedential. The rule provides the 

Director with flexibility as to 

designation of Director Review 

decisions. 

Comment 3: One commenter 

suggested adding a provision to the rule 

requiring that a request for Director 

Review set forth the reason(s) why the 

requester believes the decision for 

which review is sought presents an: (a) 

abuse of discretion, (b) important issue 

of law or policy, (c) erroneous finding 

of material fact, and/or (d) erroneous 

conclusion of law. The commenter 

suggested that the requester be required 

to highlight issues of exceptional 

importance, conflicts between Board 

decisions, or issues relating to 

application of law to matters before the 

Board. 

Response: The Office appreciates the 

comment, but does not adopt the 

suggestion. Although issue 

identification by a requester is helpful 

and encouraged, especially where a 

Director Review request presents 

multiple issues, the Office does not find 

it necessary to impose such a 

requirement by rule. Implementation 

details relating to the manner of filing 

a request for Director Review, including 

possible issues to address in a Director 

Review request, are provided on the 

Director Review web page and will 

continue to be reflected on a new 

Director Review web page consistent 

with the final rule. 

Comment 4: One commenter 

recommended limiting sua sponte 

Director Review to issues of exceptional 

importance, resolving conflicts between 

Board decisions, and/or matters of 

certainty and consistency in the 

application of law to matters before the 

Board. 

Response: The Office appreciates the 

comment, but declines to limit the 

Director’s ability to grant sua sponte 

review by rule. Consistent with Arthrex, 

the rule provides the Director with 

flexibility in initiating sua sponte 

review. The Office will continue to 

provide guidance on any applicable 

standard for sua sponte review through 

the Director Review web page consistent 

with the final rule. 

Comment 5: One commenter 

recommended adding a provision to the 

rule to explain that the phrase ‘‘any 

interlocutory decision rendered by the 

Board in reaching that decision,’’ in 

§ 42.75(a), shall be construed broadly to 

include any interlocutory decision that 

plausibly affected the outcome of the 

proceeding before the Board. The 

commenter suggested that such actions 

must be open to Director Review and 

that the Director must have broad 

discretion to review interlocutory 

decisions from the Board. 

Response: The Office appreciates the 

comment, but does not adopt the 

recommendation. Consistent with the 

comment, the final rule expressly states 

that the Director may review ‘‘any 

interlocutory decision rendered by the 

Board’’ in reaching a decision for which 

Director Review may be requested or 

initiated. Further clarification of the 

phrase, or its broad language ‘‘any,’’ is 

unnecessary. 

Comment 6: Several commenters 

suggested revising the rule to allow 

parties to request Director Review of 

proceedings other than inter partes 

review and post grant review including, 

e.g., derivations and appeals from ex 

parte examination, ex parte 

reexaminations, and reissue 

applications, potentially with different 

pages limits for these requests. Two 

commenters identified public policy 

benefits associated with expansion of 

Director Review, in part because the 

Director is a principal officer of the 

United States. One commenter 

promoted merging the Appeals Review 

Panel 9 and Director Review procedures. 

Another commenter suggested that the 

Supreme Court’s Arthrex decision 

requires Director Review of ex parte 

PTAB decisions, and cited to the 

Supreme Court’s remand of In re Boloro 

Glob. Ltd., 963 F.3d 1380 (Fed. Cir. 

2020), In re Bottomline Techs. (de), Inc., 

No. 2020–1161 (Fed. Cir. Aug. 4, 2020), 

and others, in support. 

Response: The Office appreciates 

these comments regarding the types of 

proceedings for which Director Review 

may be requested and the Office adopts 


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Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Rules and Regulations 79747 

these suggestions in part at this time. 

The Supreme Court’s decision in 

Arthrex concerned AIA trial 

proceedings. 141 S. Ct. 1970, 1987. This 

rule is promulgated under Chapter 42, 

directed to trial practice before the 

Board. Consistent with current practice, 

the rule permits Director Review of 

derivation proceedings. The rule has 

been amended to expressly reference the 

derivation statute. Additionally, 

consistent with these comments 

regarding expansion, the Office has 

further amended the rule to expressly 

indicate that Director Review is 

available for any other decision 

concluding an AIA proceeding such as, 

for example, a decision terminating the 

proceeding, e.g., due to a grant of 

adverse judgment, or a dismissal of the 

proceeding. This expansion is 

consistent with the reasoning of 

Arthrex, which requires the Director to 

be able to review final decisions of the 

Board in AIA proceedings. The Office 

does not adopt the suggestion to expand 

Director Review to include review of 

PTAB decisions in appeals of ex parte 

examination (including appeals from 

reexamination or reissue applications) 

or reexamination at this time. 

Comment 7: One commenter 

suggested that the Director entirely 

delegate the Director Review function to 

a delegatee office, similar to how 

petitions to the Director are handled 

during the patent examination process. 

The commenter expressed concern that 

involvement by the Director in disputes 

between private parties overly 

politicizes patents, causes a loss of 

confidence in the patent system, and 

takes up too much of the Director’s time. 

The commenter suggested that the 

Director should rarely, if ever, intervene 

in individual cases. The commenter 

recommended that review by the 

Director be reserved for rare cases where 

perceived defects could not be 

adequately corrected by the delegatee 

office. 

Response: The Office appreciates the 

comment, but does not adopt the 

suggestion at this time. The rule allows 

the Director to delegate review at the 

Director’s discretion. In order to provide 

the Director a flexible approach to 

delegation, the Office declines to require 

delegation of all cases, or to a specific 

delegatee Office. 

Comment 8: One commenter 

suggested limiting requests for Director 

Review to only final written decisions to 

avoid straining Office and party 

resources. Another commenter 

suggested limiting requests for Director 

Review of decisions under 35 U.S.C. 314 

or 324 to only denials of institution to 

prevent disruption of the AIA trial 

process, when trial has been instituted, 

and to provide an option for review in 

cases where appeal is not available. 

Response: The Office appreciates 

these thoughtful comments regarding 

the available scope of Director Review; 

however, these suggestions are not 

adopted. The Office modified the 

interim Director Review process to 

allow parties to request Director Review 

of all decisions on institution under 35 

U.S.C. 135, 314, or 324 in AIA 

proceedings on July 24, 2023. Since 

then, as of August 1, 2024, the Office 

has received requests for Director 

Review of 49 final written decisions and 

115 decisions on institution. Of the 115 

requests for decisions on institution, 74 

requests were directed to denials of 

institution and 41 requests were 

directed to grants of institution. The 

Office’s experience with the interim 

Director Review process indicates that 

the Office is not strained or 

overburdened by permitting parties to 

request Director Review of institution 

decisions. Even with the addition of 

requests for Director Review of 

institution decisions, the Director has 

continued to issue decisions as to 

whether to grant or deny the request for 

Director Review, on average, in less than 

two months. 

Further, the Office declines to limit 

requests for Director Review of 

institution decisions to denials of 

institution. Providing both parties the 

opportunity to request Director Review 

following an institution decision best 

aligns with the Office’s priority to 

promote the accuracy, consistency, and 

integrity of PTAB decision-making in 

AIA proceedings. 

Comment 9: Two commenters 

suggested adding various time limits for 

Director Review. One commenter 

recommended adding a 30-day deadline 

within which the Director shall issue a 

decision granting, denying, or 

delegating a party’s request for Director 

Review. The same commenter also 

recommended establishing a threemonth deadline from the date of the 

Director Review request for completion 

of Director Review but allowing 

exceptions upon a showing of good 

cause. A second commenter also 

recommended adding a deadline by 

which Director Review must conclude, 

but did not propose a specific time 

limit. The same commenter suggested 

that a rule setting forth a time limit 

would provide parties with timing 

certainty, e.g., for purposes of an appeal 

or to lift a stay in a parallel proceeding. 

Response: The Office appreciates 

these comments, but does not adopt the 

suggestions at this time. The rule allows 

parties to request Director Review from 

the Board’s decision on institution, final 

decision, grant of rehearing of such a 

decision, or other decision concluding 

an AIA proceeding. Given the breadth of 

issues that may be presented for 

Director Review, a uniform time limit 

for Director Review, whether for 

determinations to grant Director Review 

or for the issuance of Director Review 

decisions, would not be appropriate. 

Although some requests for Director 

Review can be disposed of within a 

predictable timeframe, others require 

more time, as dictated by the facts of the 

proceeding. The rule, therefore, 

provides the Director with necessary 

flexibility to carefully review and 

decide Director Review requests. The 

Office notes that the rule provides a 

time frame in which the Director will 

typically initiate sua sponte Director 

Review, providing the parties guidance 

regarding whether the Director will 

review a Board decision absent a 

request. The Office further notes that 

since it expanded the interim Director 

Review process to permit requests from 

institution decisions, the Director has 

issued decisions as to whether to grant 

or deny the request for Director Review, 

on average, in less than two months. 

The Office will continue to provide 

status updates as to pending requests for 

Director Review on the Director Review 

status web page. 

Comment 10: One commenter 

suggested amending the rule to require 

that the Director remand a decision 

denying institution of a PGR to a 

different panel if the Director identifies 

an abuse of discretion, failure to address 

an issue, or an erroneous finding of fact 

or law. 

Response: The Office appreciates the 

thoughtful comment but does not adopt 

this suggestion. The final rule sets forth 

the Director Review process, but does 

not address paneling or repaneling 

procedures at the Board. Thus, the 

suggested procedure for repaneling 

cases is outside the scope of the rule. 

Further, the Director’s involvement in 

the paneling or repaneling of any 

specific proceeding before the PTAB 

prior to issuance of a decision is 

controlled by PTAB SOP 1 and 37 CFR 

43.3(d). In particular, the Director’s 

authority under 35 U.S.C. 6(c) has been 

delegated to the PTAB Chief Judge and 

the Director is not involved in directing 

or otherwise influencing the paneling or 

repaneling of any specific proceeding 

before the PTAB prior to issuance of the 

panel decision. See SOP 1, 37 CFR 

43.3(d). 

Comment 11: One commenter 

requested that the Office provide a 

mechanism for parties seeking a good 


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cause extension of time under 

§ 42.75(c)(1). 

Response: The Office appreciates the 

suggestion but declines to implement it 

in the rule. The rule allows for an 

extension of time upon a showing of 

good cause and, consistent with Board 

practice, the burden is on the requesting 

party to provide good cause as to why 

the extension should be granted. Cf. 37 

CFR 42.20(c) (‘‘The moving party has 

the burden of proof to establish that it 

is entitled to the requested relief.’’). 

Also consistent with Board practice, any 

request for an extension of time must be 

made sufficiently in advance of the due 

date for submitting a Director Review 

request. 

Comment 12: One commenter 

suggested amending the rule to permit 

amicus briefing whenever the Director 

grants a request with respect to an 

important issue of law or policy. 

Another commenter suggested adopting 

a policy to presumptively allow the 

filing of amicus briefs in Director 

Review cases. These commenters 

suggest that routinely allowing amicus 

briefs will ensure that any member of 

the public with an interest in an issue 

can provide input. In the commenters’ 

view, members of the public may be in 

a better position to perceive potential 

impacts and policy implications raised 

by a request. 

Response: The Office appreciates 

these thoughtful comments, but the 

suggestions are not adopted. Although 

the Office agrees that amicus briefs may 

provide helpful input on important 

issues of law and policy, Director 

Review decisions are generally based on 

the existing record of a proceeding and 

typically do not need amicus briefing. 

The Director retains the authority to 

request amicus briefing, where deemed 

appropriate, and has requested such 

briefing in certain cases. Permitting 

amicus briefing in all cases may 

introduce unnecessary delays in the 

Director Review process. 

Comment 13: One commenter 

suggested increasing transparency in the 

Director Review process. The 

commenter specifically suggested that 

the Office provide additional detail 

regarding the Director’s authority to 

delegate review under proposed 

§ 42.75(f), the Director’s decisionmaking process, and the identity of 

members of the Director’s Advisory 

Committee. 

Response: The Office appreciates the 

thoughtful comment but does not adopt 

this suggestion. The Director Review 

web page provides details about the 

Director’s delegation of review, the 

decision-making process, and the 

Advisory Committee. For example, as 

discussed on the Director Review web 

page, the Director makes all Director 

Review decisions, unless the Director 

delegates review. When delegating 

review, the Director will expressly 

identify the delegated decisionmaker(s). The Director may be assisted 

by an Advisory Committee during the 

Director Review process. The Director 

Review web page describes, in detail, 

the role of the Advisory Committee and 

its composition. The Advisory 

Committee typically comprises 

members from various business units of 

the USPTO, including: Office of the 

Under Secretary (not including the 

Director or Deputy Director), Patent 

Trial and Appeal Board (not including 

members of the panel for each case 

under review), Office of the 

Commissioner for Patents (not including 

the Commissioner for Patents or any 

persons involved in the examination of 

the challenged patent), Office of the 

General Counsel (which includes the 

Office of the Solicitor), and Office of 

Policy and International Affairs. The 

Advisory Committee evaluates requests 

for Director Review and provides a 

single recommendation to the Director 

that includes a consensus 

recommendation from various business 

units of the Office, or notes differing 

views among the Advisory Committee 

members. 

Changes From the Proposed Rule 

Upon careful consideration of the 

public comments, the Office adopts the 

provisions in the proposed rule with a 

few minor changes in the rule language, 

as discussed below. 

In this final rule, the Office modifies 

§ 42.75(a), (d), and (e) to expressly 

provide for Director Review of 

derivation proceedings under 35 U.S.C. 

135. Such review is consistent with the 

interim process and the NPRM, 

although the specific statutory 

subsection was not identified in the rule 

language. Similarly, in the final rule, the 

Office modifies § 42.75(a) to expressly 

defines ‘‘final decision’’ as including 

both final written decisions under 35 

U.S.C. 318, 328, and also final decisions 

under 35 U.S.C. 135. 

The Office also modifies § 42.75(a), 

(d), and (e) to expressly provide for 

Director Review of any other decision 

concluding a proceeding brought under 

35 U.S.C. 135, 311, or 321, consistent 

with the Supreme Court’s holding in 

Arthrex. See Arthrex, 141 S. Ct. at 1987 

(‘‘The Director accordingly may review 

final PTAB decisions and, upon review, 

may issue decisions [themselves] on 

behalf of the Board.’’). For example, the 

Director may elect to review a Board 

decision that dismisses an AIA 

proceeding or terminates an AIA 

proceeding, e.g., through the grant of 

adverse judgment. 

Finally, the Office modifies § 42.75(d) 

to provide that an underlying Board 

decision does not become final if there 

is an extension of time for a party to file 

a request for Director Review, in order 

to conform to the language of paragraph 

(d) with the language of paragraph 

(c)(1). 

Discussion of Specific Rules 

This final rule amends part 42 to set 

forth regulations governing the 

procedures for Director Review of 

decisions in AIA proceedings. The 

USPTO issues this final rule to promote 

the accuracy, consistency, and integrity 

of PTAB decision-making in AIA 

proceedings. 

The USPTO adds § 42.75(a) to set 

forth the general availability of Director 

Review for any decision on institution 

under 35 U.S.C. 135, 314, or 324, any 

final decision under 35 U.S.C. 135, 318 

or 328, any decision granting rehearing 

of such a decision, or any other decision 

concluding a proceeding brought under 

35 U.S.C. 135, 311, or 321; and to 

expressly define ‘‘final decision.’’ 

The USPTO adds § 42.75(b) to set 

forth sua sponte Director Review. 

The USPTO adds § 42.75(c) to set 

forth party requests for Director Review 

and the requirements of such requests. 

The USPTO adds § 42.75(d) to specify 

the finality of decisions subject to 

Director Review. 

The USPTO adds § 42.75(e) to specify 

the process for Director Review and the 

availability for appeal of a Director 

Review decision of certain Board 

decisions. 

The USPTO adds § 42.75(f) to permit 

delegation of a review by the Director. 

The USPTO adds § 42.75(g) to specify 

provisions regarding communications 

with the Office. 

Final Rules and Interim Director 

Review Process 

Under the Director Review process set 

forth in this final rule, a party may only 

request Director Review of: (1) a 

decision on whether to institute an AIA 

trial, (2) a final decision in an AIA 

proceeding, (3) a panel decision 

granting a request for rehearing of a 

decision on whether to institute a trial 

or a final decision in an AIA 

proceeding, or (4) any other decision 

concluding an AIA proceeding, for 

example, a termination due to a grant of 

adverse judgment under 37 CFR 

42.73(b). In accordance with this final 

rule, the Director may also grant review 

of those same decisions sua sponte. 


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10No member of the Advisory Committee may 

participate in the consideration of a request for 

Director Review if that member has a conflict of 

interest under the U.S. Department of Commerce 

USPTO Summary of Ethics Rules, available at 

www.uspto.gov/sites/default/files/documents/ 

USPTO-Summary_of_Ethics_Rules-2022.pdf. PTAB 

APJs who are Advisory Committee members will 

also follow the guidance on conflicts of interest set 

forth in the PTAB SOP 1, and will recuse 

themselves from any discussion involving cases on 

which they are paneled. 

11Available at www.uspto.gov/sites/default/files/ 

documents/ptab_sop_4-2023-oct.pdf. 

The Director Review web page further 

explains that parties must file their 

request for Director Review in the Patent 

Trial and Appeal Case Tracking System 

and must also send an email to the 

Director at Director_PTABDecision_

Review@uspto.gov. As described on the 

Director Review web page, third parties 

may not request Director Review or 

communicate with the USPTO 

concerning the Director Review of a 

particular case unless the Director 

invites them to do so. 

As set forth in this final rule, in the 

course of reviewing such a decision on 

Director Review, the Director may 

review any interlocutory decision 

rendered by the Board in reaching that 

decision. 

Moreover, under this final rule, 

parties are limited to requesting either: 

(1) Director Review or (2) rehearing by 

the original panel, but may not request 

both. As described on the Director 

Review web page, requests for both 

Director Review and panel rehearing of 

the same decision are treated as a 

request for Director Review only. 

However, as set forth in this final rule, 

parties may request Director Review of 

a decision by a panel granting rehearing 

of a prior PTAB decision on institution 

or final decision. ‘‘[G]ranting rehearing’’ 

here means that the rehearing decision 

modifies the holding or result of the 

underlying decision in some fashion. 

For example, where a Board panel 

changes the determination of a final 

written decision for certain claims from 

unpatentable to not unpatentable in a 

rehearing decision, the petitioner may 

file a Request for Director Review of that 

new determination as to those claims. 

As another example, rehearing is not 

‘‘granted’’ if the panel: (1) provides a 

decision addressing the arguments in 

the request for rehearing but does not 

modify the underlying holding or result, 

or (2) denies the request for rehearing 

without further explanation. In this 

situation, Director Review of the 

rehearing decision is not available. 

As set forth on the Director Review 

web page, each request for Director 

Review is considered by an Advisory 

Committee that assists the Director. The 

Advisory Committee has at least 11 

members and includes representatives 

from various business units within the 

USPTO who serve at the discretion of 

the Director. The Advisory Committee 

currently is chaired by a Director 

Review Executive and comprises 

members from the Office of the Under 

Secretary (not including the Director or 

Deputy Director); the Patent Trial and 

Appeal Board (not including members 

of the original panel for each case under 

review); the Office of the Commissioner 

for Patents (not including the 

Commissioner for Patents or any 

persons involved in the examination of 

the challenged patent); the Office of the 

General Counsel (which includes the 

Office of the Solicitor); and the Office of 

Policy and International Affairs. The 

Advisory Committee meets periodically 

to evaluate each request for Director 

Review.10 Advisory Committee 

meetings may proceed with fewer than 

all members in attendance, as long as a 

quorum of seven members is present. 

The Advisory Committee presents the 

Director with a recommendation. The 

recommendation includes either a 

consensus from the various members of 

the Advisory Committee, or notes 

differing views among the Advisory 

Committee members. 

The Director also receives each 

Director Review request, the underlying 

decision, and associated arguments and 

evidence. The Director determines 

whether to grant or deny the request for 

Director Review, or to delegate the 

review of a Board decision. The Director 

may also consult others in the USPTO 

as needed, so long as those individuals 

consulted do not have a conflict of 

interest. Although the Advisory 

Committee and other individuals in the 

USPTO may advise the Director on 

whether a decision warrants review, the 

Director has sole discretion to resolve 

each request for Director Review. The 

Director’s decision on each request will 

be communicated to the parties in the 

proceeding. Furthermore, Director 

Review grants and delegations will be 

posted on the Director Review status 

web page. Other determinations, such as 

Director Review denials, dismissals, and 

withdrawals, will be cataloged and 

posted on the Director Review status 

web page spreadsheet. 

Pursuant to this final rule, in addition 

to allowing parties to request Director 

Review of certain decisions, the Director 

may order sua sponte Director Review. 

Sua sponte Director Review is typically 

reserved for issues of exceptional 

importance, and the Director retains the 

authority to initiate review sua sponte of 

any issue in the proceeding, as the 

Director deems appropriate. As 

explained in SOP 4, an internal postissuance review team at the PTAB 

reviews issued decisions and, if 

warranted, flags certain AIA decisions 

as potential candidates for sua sponte 

Director Review. See PTAB SOP 4,11 at 

1, 5. In addition, and as described on 

the Director Review web page, the 

Director may also convene the Advisory 

Committee to make recommendations 

on decisions that the Director is 

considering for sua sponte Director 

Review. If the Director initiates a sua 

sponte review, the parties will be given 

notice and may be given an opportunity 

for briefing. The public will also be 

notified, and the Director may request 

amicus briefing. If briefing is requested, 

the procedures to be followed will be set 

forth. 

The final rule sets forth that absent 

exceptional circumstances (which might 

include a remand from the Federal 

Circuit for the purpose of Director 

Review), the Director may initiate sua 

sponte review at any point within 21 

days after the expiration of the period 

for filing a request for rehearing, 

pursuant to § 42.71(d), as appropriate to 

the type of decision (i.e., a decision on 

institution or a final written decision) 

for which review is sought. 

The final rule also sets forth that a 

decision on institution, a final decision, 

a decision granting rehearing of such 

decision on institution of a final 

decision, or any other decision 

concluding an AIA proceeding shall 

become the decision of the agency 

unless Director Review is requested or 

sua sponte review is initiated. 

Moreover, upon denial of a request for 

Director Review of such a decision, the 

Board’s decision becomes the final 

agency decision. 

The final rule sets forth that, by 

default, a request for Director Review or 

the initiation of sua sponte Director 

Review resets the time for appeal until 

all issues on Director Review are 

resolved. A request for Director Review 

or the initiation of sua sponte Director 

Review does not stay or delay the time 

for the parties to take action in the 

underlying proceeding before the PTAB, 

unless the Director orders otherwise. 

The final rule sets forth that if the 

Director grants a Director Review, the 

Director will issue an order or decision 

that will be made part of the public 

record, subject to any confidentiality 

requirements. A grant of Director 

Review that is not withdrawn will 

conclude with the issuance of a decision 

or order providing the Director’s 

reasoning in the case. 

The final rule sets forth that a party 

may appeal a Director Review decision 


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of a final decision, rehearing thereof, or 

other appealable decision concluding an 

AIA proceeding, to the United States 

Court of Appeals for the Federal Circuit 

using the same procedures for appealing 

other PTAB decisions under 35 U.S.C. 

141(c), 141(d), 319. Director Review 

decisions on decisions on institution are 

not appealable. 

The final rule set forth that the 

Director may, at their discretion, 

delegate the review of a Board decision 

in an AIA proceeding. 

As described on the Director Review 

web page, decisions made on Director 

Review are not precedential by default, 

but may be designated as precedential 

by the Director. See also SOP 2. 

Additional implementation details of 

the Director Review process are 

provided on the Director Review web 

page. On the rule’s effective date, a new 

Director Review web page reflecting the 

content of the rule will supersede the 

Revised Interim Director Review Process 

page. 

Application of Director Review Process 

to Date 

As of August 1, 2024, the USPTO has 

received 382 compliant requests for 

Director Review under the interim 

process. Of those requests, the Director 

Review process was completed for 369 

requests. Of the 369 completed requests, 

24 requests were granted, two requests 

were delegated to the DRP, six requests 

were withdrawn, and the remaining 337 

requests were denied. Additionally, sua 

sponte Director Review was initiated in 

36 cases. 

Since July 24, 2023, when the interim 

process for Director Review was 

expanded to allow for requests of 

decisions on institution, the majority of 

requests received have been from 

decisions on institution. Specifically, 

between July 24, 2023, and August 1, 

2024, 49 requests were received for 

review of final written decisions and 

115 requests for review of decisions on 

institution. 

Rulemaking Considerations 

A. Administrative Procedure Act: The 

changes in this final rule involve rules 

of agency practice and procedure, and/ 

or interpretive rules, and do not require 

notice-and-comment rulemaking. See 

Perez v. Mortg. Bankers Ass’n, 135 S.Ct. 

1199, 1204 (2015) (explaining that 

interpretive rules ‘‘advise the public of 

the agency’s construction of the statutes 

and rules which it administers’’ and do 

not require notice-and-comment 

rulemaking when issued or amended); 

Cooper Techs. Co. v. Dudas, 536 F.3d 

1330, 1336–37 (Fed. Cir. 2008) (stating 

that 5 U.S.C. 553, and thus 35 U.S.C. 

2(b)(2)(B), do not require notice-andcomment rulemaking for ‘‘interpretative 

rules, general statements of policy, or 

rules of agency organization, procedure, 

or practice’’); and JEM Broadcasting Co. 

v. F.C.C., 22 F.3d 320, 328 (D.C. Cir. 

1994) (explaining that rules are not 

legislative because they do not 

‘‘foreclose effective opportunity to make 

one’s case on the merits’’). 

Nevertheless, the USPTO has chosen 

to seek public comment before 

implementing this rule to benefit from 

the public’s input. 

B. Regulatory Flexibility Act: For the 

reasons set forth in this final rule, the 

Senior Counsel for Regulatory and 

Legislative Affairs, Office of General 

Law, USPTO, has certified to the Chief 

Counsel for Advocacy of the Small 

Business Administration that the 

changes set forth in this final rule would 

not have a significant economic impact 

on a substantial number of small 

entities. See 5 U.S.C. 605(b). 

This final rule sets forth expressly the 

rules governing Director Review. The 

changes do not create additional 

procedures or requirements or impose 

any additional compliance measures on 

any party beyond the interim process for 

Director Review, nor do these changes 

cause any party to incur additional 

costs. Therefore, any requirements 

resulting from these changes are of 

minimal or no additional burden to 

those practicing before the Board. 

For the foregoing reasons, the changes 

in this final rule will not have a 

significant economic impact on a 

substantial number of small entities. 

C. Executive Order 12866 (Regulatory 

Planning and Review): This rulemaking 

has been determined to be not 

significant for purposes of Executive 

Order 12866 (September 30, 1993), as 

amended by Executive Order 14094 

(April 6, 2023). 

D. Executive Order 13563 (Improving 

Regulation and Regulatory Review): The 

Office has complied with Executive 

Order 13563 (January 18, 2011). 

Specifically, and as discussed above, the 

Office has, to the extent feasible and 

applicable: (1) made a reasoned 

determination that the benefits justify 

the costs of the rules; (2) tailored the 

rules to impose the least burden on 

society consistent with obtaining the 

regulatory objectives; (3) selected a 

regulatory approach that maximizes net 

benefits; (4) specified performance 

objectives; (5) identified and assessed 

available alternatives; (6) involved the 

public in an open exchange of 

information and perspectives among 

experts in relevant disciplines, affected 

stakeholders in the private sector, and 

the public as a whole, and provided 

online access to the rulemaking docket; 

(7) attempted to promote coordination, 

simplification, and harmonization 

across government agencies and 

identified goals designed to promote 

innovation; (8) considered approaches 

that reduce burdens and maintain 

flexibility and freedom of choice for the 

public; and (9) ensured the objectivity of 

scientific and technological information 

and processes. 

E. Executive Order 13132 

(Federalism): This rulemaking pertains 

strictly to Federal agency procedure and 

does not contain policies with 

federalism implications sufficient to 

warrant the preparation of a Federalism 

Assessment under Executive Order 

13132 (August 4, 1999). 

F. Executive Order 13175 (Tribal 

Consultation): This rulemaking will not: 

(1) have substantial direct effects on one 

or more Indian tribes; (2) impose 

substantial direct compliance costs on 

Indian Tribal governments; or (3) 

preempt Tribal law. Therefore, a Tribal 

summary impact statement is not 

required under Executive Order 13175 

(November 6, 2000). 

G. Executive Order 13211 (Energy 

Effects): This rulemaking is not a 

significant energy action under 

Executive Order 13211 because it is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Therefore, a Statement of Energy 

Effects is not required under Executive 

Order 13211 (May 18, 2001). 

H. Executive Order 12988 (Civil 

Justice Reform): This rulemaking meets 

applicable standards to minimize 

litigation, eliminate ambiguity, and 

reduce burden as set forth in sections 

3(a) and 3(b)(2) of Executive Order 

12988 (February 5, 1996). 

I. Executive Order 13045 (Protection 

of Children): This rulemaking does not 

concern an environmental risk to health 

or safety that may disproportionately 

affect children under Executive Order 

13045 (April 21, 1997). 

J. Executive Order 12630 (Taking of 

Private Property): This rulemaking will 

not affect a taking of private property or 

otherwise have taking implications 

under Executive Order 12630 (March 

15, 1988). 

K. Congressional Review Act: Under 

the Congressional Review Act 

provisions of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (5 U.S.C. 801 et seq.), the USPTO 

will submit a report containing the rule 

and other required information to the 

United States Senate, the United States 

House of Representatives, and the 

Comptroller General of the Government 

Accountability Office. The changes in 

this rulemaking are not expected to 


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result in an annual effect on the 

economy of $100 million or more; a 

major increase in costs or prices; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based enterprises to 

compete with foreign-based enterprises 

in domestic and export markets. 

Therefore, this rulemaking will not be a 

‘‘major rule’’ as defined in 5 U.S.C. 

804(2). 

L. Unfunded Mandates Reform Act of 

1995: The changes set forth in this 

rulemaking do not involve a Federal 

intergovernmental mandate that will 

result in the expenditure by State, local, 

and Tribal governments, in the 

aggregate, of $100 million (as adjusted) 

or more in any one year, or a Federal 

private sector mandate that will result 

in the expenditure by the private sector 

of $100 million (as adjusted) or more in 

any one year, and will not significantly 

or uniquely affect small governments. 

Therefore, no actions are necessary 

under the provisions of the Unfunded 

Mandates Reform Act of 1995. See 2 

U.S.C. 1501 et seq. 

M. National Environmental Policy Act 

of 1969: This rulemaking will not have 

any effect on the quality of the 

environment and is thus categorically 

excluded from review under the 

National Environmental Policy Act of 

1969. See 42 U.S.C. 4321 et seq. 

N. National Technology Transfer and 

Advancement Act of 1995: The 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) are not applicable because this 

rulemaking does not contain provisions 

that involve the use of technical 

standards. 

O. Paperwork Reduction Act of 1995: 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3501–3549) requires that the 

Office consider the impact of paperwork 

and other information collection 

burdens imposed on the public. This 

rulemaking does not add any additional 

information requirements or fees for 

parties before the Board. Therefore, the 

Office is not resubmitting collection 

packages to OMB for its review and 

approval because the revisions in the 

final rule do not materially change the 

information collections approved under 

OMB control number 0651–0069. 

Notwithstanding any other provision 

of law, no person is required to respond 

to, nor shall any person be subject to, a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act unless that collection of 

information displays a currently valid 

OMB control number. 

P. E-Government Act Compliance: 

The USPTO is committed to compliance 

with the E-Government Act to promote 

the use of the internet and other 

information technologies, to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

List of Subjects in 37 CFR Part 42 

Administrative practice and 

procedure, Inventions and patents, 

Lawyers. 

For the reasons set forth in the 

preamble, the USPTO amends 37 CFR 

part 42 as follows: 

PART 42—TRIAL PRACTICE BEFORE 

THE PATENT TRIAL AND APPEAL 

BOARD 

■ 1. The authority citation for part 42 is 

revised to read as follows: 

Authority: 35 U.S.C. 2(b)(2), 3, 6, 21, 23, 

41, 134, 135, 143, 153, 311, 312, 314, 316, 

318, 321–326, 328; Pub. L. 112–29, 125 Stat. 

284; and Pub. L. 112–274, 126 Stat. 2456. 

■ 2. Add § 42.75 to read as follows: 

§ 42.75 Director review. 

(a) Director Review generally. In a 

proceeding under this part, the Director 

may review any decision on institution 

under 35 U.S.C. 135, 314, or 324, any 

final decision under 35 U.S.C. 135, 318, 

or 328, any decision granting rehearing 

of such a decision, or any other decision 

concluding a proceeding brought under 

35 U.S.C. 135, 311, or 321. In the course 

of reviewing such a decision, the 

Director may review any interlocutory 

decision rendered by the Board in 

reaching that decision. For purposes of 

this section, the term ‘‘final decision’’ is 

defined as a ‘‘final decision’’ under 35 

U.S.C. 135 as well as a ‘‘final written 

decision’’ under 35 U.S.C. 318 or 328. 

(b) Sua sponte Director review. The 

Director, on the Director’s own 

initiative, may initiate sua sponte 

Director Review of a decision as 

provided in paragraph (a) of this 

section. Absent exceptional 

circumstances, any sua sponte Director 

Review will be initiated within 21 days 

after the expiration of the period for 

filing a request for rehearing pursuant to 

§ 42.71(d). 

(c) Requests for Director review. A 

party to a proceeding under this part 

may file one request for Director Review 

of a decision as provided in paragraph 

(a) of this section, instead of filing a 

request for rehearing of that decision 

pursuant to § 42.71(d), subject to the 

limitations herein and any further 

guidance provided by the Director. 

(1) Timing. The request must be filed 

within the time period set forth in 

§ 42.71(d) unless an extension is granted 

by the Director upon a showing of good 

cause. No response to a Director Review 

request is permitted absent Director 

authorization. 

(2) Format and length. A request for 

Director Review must comply with the 

format requirements of § 42.6(a). Absent 

Director authorization, the request must 

comply with the length limitations for 

motions to the Board provided in 

§ 42.24(a)(1)(v). 

(3) Content. Absent Director 

authorization, a request for Director 

Review may not introduce new 

evidence. 

(d) Final agency decision. A decision 

on institution, a final decision, a 

decision granting rehearing of such 

decision on institution or final decision, 

or any other decision concluding a 

proceeding brought under 35 U.S.C. 

135, 311, or 321 shall become the final 

agency decision unless: 

(1) A party requests rehearing or 

Director Review within the time 

provided by § 42.71(d) or an extension 

of time for a request for Director Review 

is granted pursuant to paragraph (c)(1) 

of this section; or 

(2) The Director initiates sua sponte 

review as provided by § 42.75(b). Upon 

denial of a request for Director Review 

of a final decision, of a decision granting 

rehearing of a final decision, or of any 

other decision concluding a proceeding 

brought under 35 U.S.C. 135, 311, or 

321, the Board’s decision becomes the 

final agency decision. 

(e) Process—(1) Effect on underlying 

proceeding. Unless the Director orders 

otherwise, and except as provided in 

paragraph (e)(3) of this section, a request 

for Director Review or the initiation of 

review on the Director’s own initiative 

does not stay the time for the parties to 

take action in the underlying 

proceeding. 

(2) Grant and scope. If the Director 

grants Director Review, the Director 

shall issue an order or decision that will 

be made part of the public record, 

subject to the limitations of any 

protective order entered in the 

proceeding or any other applicable 

requirements for confidentiality. If the 

Director grants review and does not 

subsequently withdraw the grant, the 

Director Review will conclude with the 

issuance of a decision or order that 

provides the reasons for the Director’s 

disposition of the case. 

(3) Appeal. A party may appeal a 

Director Review decision of a final 

decision under 35 U.S.C. 135, 318, or 

328, a decision granting rehearing of a 

final decision under 35 U.S.C. 135, 318, 

or 328, or any other appealable decision 

concluding a proceeding brought under 


khammond on DSKJM1Z7X2PROD with RULES
79752 Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Rules and Regulations 

1The PADEP and ACHD SIP submittals are 

located in the docket for this final rule and can be 

found under Docket ID Number EPA–R03–OAR– 

2023–0300 at www.regulations.gov. 

2The Pennsylvania portion of the PhiladelphiaWilmington-Atlantic City, PA-NJ-MD-DE area is 

classified as Serious nonattainment for the 2015 

ozone NAAQS (See 89 FR 61025 (July 30, 2024)). 

35 U.S.C. 135, 311, or 321 to the United 

States Court of Appeals for the Federal 

Circuit using the same procedures for 

appealing other decisions under 35 

U.S.C. 141(c), 141(d), 319. Director 

Review decisions on decisions on 

institution are not appealable. A request 

for Director Review of a final decision, 

a decision granting rehearing of a final 

decision, or any other appealable 

decision concluding a proceeding 

brought under 35 U.S.C. 135, 311, or 

321, or the initiation of a review on the 

Director’s own initiative of such a 

decision, will be treated as a request for 

rehearing under § 90.3(b)(1) of this 

chapter and will reset the time for 

appeal until after all issues on Director 

Review in the proceeding are resolved. 

(f) Delegation. The Director may 

delegate their review of a decision 

provided in paragraph (a) of this 

section, subject to any conditions 

provided by the Director. 

(g) Ex parte communications. All 

communications from a party to the 

Office concerning a specific Director 

Review request or proceeding must copy 

counsel for all parties. Communications 

from third parties regarding a specific 

Director Review request or proceeding, 

aside from authorized amicus briefing, 

are not permitted and will not be 

considered. 

Katherine K. Vidal, 

Under Secretary of Commerce for Intellectual 

Property and Director of the United States 

Patent and Trademark Office. 

[FR Doc. 2024–22194 Filed 9–30–24; 8:45 am] 

BILLING CODE 3510–16–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2023–0300; FRL–11403– 

02–R3] 

Air Plan Approval; Pennsylvania; Oil 

and Natural Gas Control Measures for 

2008 and 2015 Ozone National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a state 

implementation plan (SIP) revision 

submitted by the Commonwealth of 

Pennsylvania. The revision establishes 

and requires reasonably available 

control technology (RACT) requirements 

for the 2008 and 2015 ozone national 

ambient air quality standards (NAAQS) 

for each category of volatile organic 

compound (VOC) sources in 

Pennsylvania covered by the EPA’s 2016 

Control Techniques Guidelines (CTG) 

for the oil and gas industry. EPA is also 

approving Allegheny County, 

Pennsylvania’s SIP revision, which 

incorporates by reference the above 

Pennsylvania regulations for the 2016 

CTG for oil and gas into the Allegheny 

County SIP with minor changes to 

reference Allegheny County’s existing 

regulations. This action is being taken 

under the Clean Air Act (CAA). 

DATES: This final rule is effective on 

October 31, 2024. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2023–0300. All 

documents in the docket are listed on 

the www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available through www.regulations.gov, 

or please contact the person identified 

in the FOR FURTHER INFORMATION

CONTACT section for additional 

availability information. 

FOR FURTHER INFORMATION CONTACT: 

Michael O’Shea, Planning & 

Implementation Branch (3AD30), Air & 

Radiation Division, U.S. Environmental 

Protection Agency, Region III, 1600 John 

F. Kennedy Boulevard, Philadelphia, 

Pennsylvania 19103. The telephone 

number is (215) 814–2064. Dr. O’Shea 

can also be reached via electronic mail 

at oshea.michael@epa.gov. 

SUPPLEMENTARY INFORMATION: On 

December 12, 2022, the Pennsylvania 

Department of Environmental Protection 

(PADEP) submitted a revision to its SIP 

establishing RACT requirements for the 

2008 and 2015 ozone NAAQS to control 

VOC emissions from sources covered by 

EPA’s 2016 CTG for the oil and gas 

industry. On September 8, 2023, PADEP 

submitted, on behalf of Allegheny 

County Health Department (ACHD), a 

revision to the Allegheny County SIP 

(Allegheny County SIP submission/ 

submittal) incorporating by reference 

(IBR) the aforementioned Pennsylvania 

regulations. 

I. Background 

On June 28, 2024 (89 FR 53932), EPA 

published a notice of proposed 

rulemaking (NPRM) for the 

Commonwealth of Pennsylvania and 

Allegheny County. In the NPRM, EPA 

proposed approval of Pennsylvania’s 

SIP submittal and ACHD’s SIP 

submittal. The formal SIP revisions 

were submitted by Pennsylvania on 

December 12, 2022 and by PADEP on 

behalf of ACHD on September 8, 2023.1

The Pennsylvania submittal establishes 

RACT requirements for the 2008 and 

2015 ozone NAAQS for each category of 

VOC sources in Pennsylvania covered 

by EPA’s October 27, 2016 ‘‘Final 

Control Techniques Guidelines for the 

Oil and Natural Gas Industry’’ (EPA’s 

2016 Oil and Gas CTG) (81 FR 74798). 

The Allegheny County, Pennsylvania 

submittal addresses the same CTG by 

incorporating the Pennsylvania 

regulations into the Allegheny County 

SIP with minor changes to reference 

Allegheny County’s existing regulations. 

These SIP revisions were submitted to 

meet the requirement in CAA section 

182(b)(2)(A) and (B) that states with 

ozone nonattainment areas classified as 

Moderate or above must revise their 

SIPs to include provisions to implement 

RACT for each category of VOC sources 

covered by a CTG document. CAA 

section 184(b)(1)(B) also extends this 

RACT obligation to all areas of states 

within the Ozone Transport Region 

(OTR). The entire state of Pennsylvania 

is within the OTR (See CAA section 

184(a)), and has one ozone 

nonattainment area classified as 

moderate or above.2 A more complete 

discussion of the purpose and history of 

these SIP revisions can be found in 

EPA’s NPRM. 

II. Summary of the SIP Revisions and 

EPA’s Analysis 

Pennsylvania’s and Allegheny 

County’s SIP submissions included two 

separate sets of nearly identical 

regulations for two types of oil and 

natural gas sources as defined by 

Pennsylvania and Allegheny County: 

‘‘conventional’’ oil and gas sources, and 

‘‘unconventional’’ oil and gas sources. 

EPA’s 2016 Oil and Gas CTG does not 

distinguish between the two types of 

sources. Despite being separate, both 

regulations (Regulation #7–544, entitled 

‘‘Control of VOC Emissions from 

Unconventional Oil and Natural Gas 

Sources,’’ and Regulation #7–580, 

entitled ‘‘Control of VOC Emissions 

from Conventional Oil and Natural Gas 


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