Rule Effort Worthwhile?
Back in November of 2021, the Northern District of California dismissed an APA lawsuit filed by a number of large companies seeking to challenge the PTAB’s NHK-Fintiv practices. At that time, I opined that the Court had overlooked some of the key APA arguments, and that the Federal Circuit would likely offer a more nuanced view. Yesterday, the Court, reversed-in-part and remanded for further consideration of the APA challenge.
Of particular interest, the Federal Circuit found that the APA challenge to the NHK-Fintiv practices (i.e., that such practices were unlawful absent notice and comment rulemaking) should not have been dismissed for lack of standing. While this may have been a very exciting development a year or so back, it is a bit anticlimactic in 2023.