Federal Circuit Holds Party Can Challenge PTAB Rulemaking

In Apple, Inc. v. Katherine K. Vidal, the Federal Circuit ruled that Apple and the other plaintiffs could continue their suit on a lone surviving challenge to the PTAB Director's rulemaking procedures regarding institutional discretion. Apple Inc. v. Vidal, No.5:20-cv-06128-EJD, at 3 (Fed. Cir. Mar. 13, 2023).

The underlying suit began on August 31, 2020 when "Apple and three other companies filed suit in the Northern District of California, seeking to challenge the [PTAB's precedential decision] Fintiv instructions on three grounds under the APA: (1) that the Director acted contrary to the IPR provisions of the patent statute, see 5 U.S.C. § 706(2)(C); (2) that the Fintiv instructions are arbitrary and capricious, see 5 U.S.C. § 706(2)(A); and (3) that the Fintiv instructions were issued without compliance with the notice-and-comment rulemaking requirements of 5 U.S.C. § 553." Id. at 11.