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.


Continue Reading NHK-Fintiv APA Suit Ends Abruptly

APA Action & Mandamus Petition Simultaneously Challenge PTAB’s NHK/Fintiv Framework

Back in June, I predicted that an APA action against the USPTO and/or a mandamus petition to the Federal Circuit was inevitable given the PTAB’s practice of denying IPR petitions in favor of competing district court trial dates. Well…here we are.

Yesterday,  Director Iancu was sued by a group of large tech companies for allegedly violating the APA by denying IPR petitions on the basis of a competing trial date, and late last week, one of the same companies also filed a mandamus petition seeking to force the agency to consider the merits of a petition denied as a matter of discretion even though it was filed some seven months before the 315(b) deadline.

Never a dull moment at the PTAB.
Continue Reading USPTO Sued Over Discretionary Denials