Appeals From AIA Trials 35 U.S.C. § 141 – Final Written Decision must be appealed to the Federal Circuit File a Notice of Appeal with the Director of the USPTO – 35 U.S.C. § 142 – Timing—37 C.F.R. § 90.3 (63 days from final Board decision) – Notice and service—37 C.F.R. § 90.2 (NOA filed with the Director; service to the Federal Circuit)

Notice and Intervention 35 U.S.C. § 143 – The Director may intervene by right Appellant’s Responsibility – 37 C.F.R. § 90.2(a)(3)(ii)—Notice of appeal “must provide sufficient information to allow the Director to determine whether to exercise the right to intervene” – Applies to IPR, PGR, CBM, derivation proceedings

Solicitor General’s Role Department of Justice – The Solicitor General of the United States is responsible for determining “whether the Government will intervene, in any appellate court.” 28 C.F.R. § 0.20(c) – Determination is made “in consultation with each agency or official concerned.” Id.

Intervention Process Notice of Appeal USPTO Solicitor’s Office reviews § 90.2(a)(3)(ii) notice Issues of broad significance to the agency Recommendation to DOJ USPTO submits recommendation to DOJ DOJ’s Civil Appellate section also submits recommendation to Solicitor General Final Decision Solicitor General makes final decision May or may not delegate litigation authority to the Director

General Appellate Process Docketing and General Matters 35 U.S.C. § 143— USPTO files certified list of documents comprising the record Federal Circuit dockets appeal Entries of appearance/certificates of interest/docketing statements/designation of appendix Briefing 60 days from docketing—blue brief 40 days—red brief 14 days—reply brief 7 calendar days—appendix Oral Argument and Decision Court sets oral argument Decision Green brief NOI before BB—same date as red brief NOI after BB—40 days after NOI Cross appeals w/ or w/o intervention

Standards of Review Federal Circuit reviews PTAB decisions under the APA standard— 5 U.S.C. § 706(2)(A) – “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” Legal conclusions—de novo Factual findings—substantial evidence Claim construction—?

Standards of Review (con’t.) Regulations—35 U.S.C. § 316(a) – Issuance of AIA rules—deference unless based on unreasonable construction of statute (Chevron) – Interpretation of AIA rules—”controlling unless plainly erroneous or inconsistent with the regulation” (Auer) Notice-and-comment rulemaking PTAB opinions