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ARTICLE · 10 APRIL 2016

IP Newsflash - April 1, 2016

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In an appeal of a decision by the Patent Trial and Appeal Board (PTAB) denying the institution of an inter partes review (IPR) petition, the Federal Circuit found its hands tied...

United StatesIntellectual Property
Akin Gump Strauss Hauer & Feld LLP
Akin Gump Strauss Hauer & Feld LLP
Michael Kahn
Michael Kahn
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FEDERAL CIRCUIT

Federal Circuit Lacks Authority to Review Denial of Institution of IPR on Some, but Not All, Raised Grounds

In an appeal of a decision by the Patent Trial and Appeal Board (PTAB) denying the institution of an inter partes review (IPR) petition, the Federal Circuit found its hands tied, and held that it has no authority to review PTAB decisions instituting or denying IPR. Under 35 U.S.C. § 314(d), the determination "whether to institute an [IPR] under this section shall be final and non-appealable." The court held that § 314(d) strips it of jurisdiction to review the PTAB IPR institution decisions.

Shaw petitioned for IPR of all claims of a patent owned by Automated Creel and raised three grounds of invalidity, including anticipation in view of the Payne reference. The PTAB instituted IPR of all claims, but did not institute IPR on the basis of the Payne reference. In its decision instituting IPR, PTAB stated that it denied instituting IPR on the

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