Federal Circuit Grants the USPTO Director a Second Remand in Percept's Appeal on Its Digital Eyewear Patent.

The order

The case is Percept Technologies Inc. v. Squires, No. 2026-1835 (Fed. Cir. Oct. 28, 2026) (nonprecedential), an appeal from the Patent Trial and Appeal Board in IPR2023-00495. The caption lists Percept as appellant and the Director as intervenor. Judge Linn wrote the order for a panel of Judges Chen, Linn, and Cunningham.

The court explained that an agency may properly request a remand to reconsider its previous position, and that remand is "usually appropriate" if the agency expresses a "substantial and legitimate" concern about its earlier decision, citing SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). The Director stated that he "has a substantial and legitimate concern that the decision on remand does not provide adequate reasoning for any of the petition's grounds as to how the prior art asserted in those grounds meets the disputed claim limitation 'a dynamic eye tracking mechanism in communication with the lens.'" The court wrote: "While we are sympathetic to Percept's concerns regarding further delay, we expect the Director to conduct the remand proceedings in an expeditious manner." It granted the motion "for the limited purpose of allowing the Director to provide further explanation regarding the issues referenced in this order and the motion," with each party bearing its own costs.

The patent and the IPR

Magic Leap, Inc. petitioned for inter partes review of claims 1-3 and 12-14 of Percept's U.S. Patent 8,696,113, titled "Enhanced Optical and Perceptual Digital Eyewear," and the Board instituted trial on all challenged claims and grounds on August 3, 2023. According to the final written decision, the parties indicated that the patent was at issue in Percept Technologies Inc. v. Magic Leap, Inc., No. 1:22-cv-00025-RGA (D. Del.). Claim 1 recites a wearable optics device comprising a lens and "a dynamic eye tracking mechanism in communication with the lens," where the dynamic eye tracking mechanism utilizes optical parameter measurements that include any of ciliary, pupil, corneal, eye lens, iris, eye lid, or retina measurements, and where an optical/perceptual parameter based operating system is utilized and controls the device.

In its July 23, 2024 final written decision, the Board held claims 1-3 and 12-14 unpatentable as obvious over Osterhout and, separately, over Mann '526 in view of Vaissie. The Board declined to adopt Percept's proposed reading of "a dynamic eye tracking mechanism in communication with the lens" as requiring an active exchange of information between the eye tracking mechanism and the lens, and it did not otherwise construe the phrase.

The first remand

Percept appealed that decision, No. 2024-2371. On September 12, 2025, the court granted the Acting Director's unopposed motion to remand. The Acting Director had stated that the decision "provides no reasoning as to how the prior art meets [a disputed] claim limitation under any of the petitioner's asserted grounds" and asked for remand "for the agency to issue a revised decision." The court took "no position on whether the decision should be revised." Percept then appealed the Board's decision on remand, which is the appeal the court has now remanded again.

What to watch next

Watch for the Director's further explanation on remand and for any return of the case to the Federal Circuit.