Yesterday, in three separate decisions, the CAFC made clear that the grant/denial of an IPR by the Patent Trial & Appeal Board (PTAB) is not reviewable. The CAFC based their decisions on 35 U.S.C. § 314(d), which states:
No Appeal.— The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.
The Court denied two writs of mandamus that challenged the PTAB decision to deny IPRs in Dominion Dealer ( here) and grant IPRs (Proctor & Gamble (here). The CAFC also granted a motions to dismiss a pending appeals from a failed IPR petition filing (Volcano (here).
There seem to be two factors driving such “creative lawyering.” One, a failed IPR may leave a petitioner outside of the 12 month window with no option but the district court, and two, patentees subject to PTAB review are struggling mightily with the idea that no amount of legal maneuvering/theatrics can stall the speed of the PTAB.