Appeal Bar Deemed to Bar APA Suit
Back in September of 2020, a number of large tech companies sued the USPTO for violating the APA by denying IPR petitions on the basis of a competing trial date. More specifically, the suit argued that the so-called NHK-Fintiv practice — implemented without notice and comment rulemaking — was in violation of established APA practices. Since filing, the Court seemed quite interested in that argument at an earlier oral hearing on summary judgment. Oddly, the case was dismissed yesterday based upon the 314(d) appeal bar.