CyWee Group Ltd. v. Google LLC, [2020-1565, 2020-1567] (February 8, 2023), the Federal Circuit affirmed the USPTO’s Director’s decision not to rehear two Final Written Decision determining that all of the challenged claims in CyWee’s patents were unpatentable.

CyWee also argued that the Board’s institution decisions and final written decisions were untimely. According to CyWee, it was not enough that the Board instituted the IPRs within the statutorily required three months of receiving CyWee’s preliminary responses. Nor was it enough that the Board issued its final written decisions within the time the statute contemplates (i.e., one year from institution, plus in this case an additional one month due to joinder). CyWee argued that not only must the Director be able to review institution decisions and final written decisions, she also must perform (or have the opportunity to perform) such a review within the statutory deadlines applicable to those decisions.

The Federal Circuit made short work of finding CyWee’s arguments “meritless,” noting that the statutory provisions setting specific deadlines for institution decisions and final written decisions say nothing of deadlines for any further Director review of those decisions. The Federal Circuit said that the Director properly delegated authority to institute proceedings to the Board, and said that if the Board makes that determination within the § 314(b) deadline and here (as it did) —the institution decision is timely, notwithstanding the possibility that the Director may later revisit that decision.

Similarly, with respect to the final written decision, Director properly delegated authority to the Board to extend the one year deadline for a Final Written Decision in the case of joinder. The Federal Circuit said that delegation to the Board of the authority to decide on institution without a mechanism for parties to subsequently request Director review does not present Appointments Clause problems.