By Scott A. McKeown
| May 4, 2017

"Under This Section" a Limitation on the Scope of 314(d) Appeal Bar?


In today's en banc argument (audio here) the Federal Circuit considered the whether it should overrule Achates Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015) and hold that judicial review is available for a patent owner to challenge the PTO’s determination that the petitioner satisfied the timeliness requirement of 35 U.S.C. § 315(b) governing the filing of petitions for inter partes review.

As expected much of the debate focused on whether or not the "under this section" language of 314(d) limited the appeal bar to solely patentability matters (i.e., 314(a); or, whether that phrase swept in related sections, and how the language "less closely related statutes" of Cuozzo impacted the analysis.  Judge Chen and others appeared to find the "under this section" language must have some meaning, and that it must be a restriction on the appeal bar— thereby additionally freeing up questions of RPI/privity for review.  Others on the Court seemed to respond favorably to the government's position that "under this section," in the administrative law context, provided a more expansive bar that swept in all aspects of AIA trial institution.

Stay tuned.
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