Federal Circuit Rejects Appeal Challenging NHK-Fintiv Rule as District Court Litigation Presses Onward

November 6, 2020

The Federal Circuit has declined to step into an ongoing battle over the NHK-Fintiv rule, a set of Patent Trial and Appeal Board (PTAB) decisions allowing the Board to deny institution for an America Invents Act (AIA) review trial based on the status of parallel district court litigation. On October 30, the appeals court denied a mandamus petition and related set of appeals filed by Cisco that raised a series of procedural and substantive challenges against the rule, holding that it lacked jurisdiction under the Supreme Court’s Cuozzo opinion. That same day, it also dismissed a Google appeal on that same basis. Despite the Federal Circuit’s decision, a parallel district court lawsuit contesting the NHK-Fintiv rule remains active in the Northern District of California. As recently reported by RPX, that action—filed by Cisco and Google along with Apple and Intel—escalated in late September after a group of prospective intervenors, including US Inventor, moved to block the institution of all AIA review trials while the litigation plays out.

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