"In a petition docketed Wednesday, September 27, VirnetX has asked the
Supreme Court to review: 1) whether the U.S. Court of Appeals for the
Federal Circuit properly upheld joinder of a party to an inter partes
review (IPR) where the joined party did not properly file a petition for
IPR within the one year statutory time limit; and 2) whether VirnetX’s
petition for Director Review was properly denied since the Commissioner
for Patents was exercising the Director’s review authority at the time,
which VirnetX argues violated the Federal Vacancies Reform Act."
1) It shouldn't matter. After-all, the PTO Director joined the appeal to CAFC as a co-appellee with Mangrove (read the CAFC Order). As unusual as that is (it reflects the PTO's absolute feelings about the VirnetX patents), I don't think the PTO Director has a statutory time limit.
2) The Commissioner was "Acting" PTO Director. Acting Directors have the same power, authority, and responsibilities as the appointed Directors that both preceded and succeeded them. In short---they are the Director at the time.
Yeah, the straws that they are grasping at are microscopic. But, hey, If it keeps Cap'n Ken rolling in dough for a while longer, and keeps the Gullible-Goober happy and hopeful---why not?