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ESIP Series 2, LLC v. Puzhen Life USA, LLC

Real-Party-in-Interest Decisions at IPR Institution Not Judicially Reviewable

ESIP Series 2, LLC v. Puzhen Life USA, LLC, __ F.3d __, 2020 WL 2529769 (Fed. Cir. May 19, 2020) (Lourie, REYNA, Hughes) (PTAB) (3 of 5 stars)

Fed Cir affirms IPR decision that certain ESIP claims are unpatentable as obvious. ESIP’s patent relates to in-home vaporizers/diffusers that combine “germicidal protection and aromatic diffusion.” The opinion describes how the record contained substantial evidence supporting each of four fact findings ESIP challenged. The opinion declines to take up challenges to the level of ordinary skill and construction of a certain term because ESIP did not show how resolution of those issues would lead to relief.

ESIP also challenged the Board’s real-party-in-interest determination at institution. § 314(d) precludes the Fed Cir from reviewing that determination. “In view of Cuozzo, 136 S. Ct. 2131 (2016), and Click-to-Call, 140 S. Ct. 1367 (2020), we find no principled reason why preclusion of judicial review under § 314(d) would not extend to a Board decision concerning the ‘real parties in interest’ requirement of § 312(a)(2).” Op. at 12 (citations added).

KEYWORDS: INTER PARTES REVIEW; REAL PARTY IN INTEREST; JUDICIAL REVIEW