By statute, an IPR cannot be instituted if the petitioner, real
party in interest, or its "privy" was sued for infringing
the patent more than one year before the petition for the IPR. 35
U.S.C. § 315(b). As we
previously reported, in Wi-Fi One, LLC v. Broadcom
Corp., 878 F.3d 1364 (Fed. Cir. 2018), the Federal Circuit en
banc held that it had jurisdiction to review the PTAB's
time-bar decisions. Last Friday, we got the first inkling of what
such review will look like, as the Wi-Fi panel affirmed
the PTAB's decision on remand. If Wi-Fi One is any
indicator, the Federal Circuit's review will be highly
deferential.
The basic facts are as follows. In 2010, Wi-Fi's predecessor
sued D-Link Systems, Inc. for patent infringement. Three years
later, Broadcom filed an IPR petition against the asserted patents.
Wi-Fi argued that D-Link and Broadcom were privies, so that the
suit against D-Link time-barred Broadcom's petition. The Board
rejected that argument, denied D-Link's
