US Patent & Trademark Office Director John A. Squires, in undoing a Patent Trial and Appeal Board (PTAB) invalidity ruling based on witness testimony this month, concluded his decision with a note that it “does not constitute a final written decision” under the section of the law that permits appeals to the Federal Circuit. The use of that language could ultimately expand the outer bounds of the director’s powers.
“If you looked at this decision without the statement about this not being a final written decision and asked what is this—it kind of looks like a final written decision,” Bracewell’s Kit Crumbley, a former PTAB judge, told Bloomberg Law.
“The types of issues it’s deciding—credibility of a witness—is very much the type of issue the board typically decides in a final written decision,” Crumbley said. “At some point, if it looks like a final written decision and quacks like a final written decision, it’s a final written decision, whether the director says it or not.”
