PTAB Time Bar Rulings Can Be Appealed, Holds Federal Circuit

January 12, 2018

The Federal Circuit has held that patent owners may appeal rulings on the Patent Trial and Appeal Board’s statutory time bar for inter partes review (IPR), under which the Board may not institute trial more than one year after a petitioner is sued for infringement. In an opinion issued on January 8 in Wi-Fi One v. Broadcom, the Federal Circuit held that the statutory bar on appellate review for institution decisions from 35 USC Section 314(d) does not apply to Section 315(b), which governs the time bar, holding that Congress did not “clearly and convincingly indicate its intent to prohibit judicial review”. Circuit Judge Todd M. Hughes dissented, arguing that the majority opinion interprets Section 314(d) too narrowly and is inconsistent with the US Supreme Court’s decision in Cuozzo Speed Technologies v. Lee.

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