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In re AT&T Intellectual Property II, L.P.

Decision to Institute IPRx Non-Reviewable Notwithstanding Requestor’s Motion to Have Petition Denied

In re AT&T Intellectual Property II, L.P., (Fed. Cir. May 10, 2017) (Dyk, Mayer, REYNA) (PTAB) (2 of 5 stars)

Fed Cir affirms IPRx determination of anticipation. Per § 312(c) and Belkin, 696 F.3d 1379 (Fed. Cir. 2012), the court lacked authority to review the PTO’s institution decision. That the petitioner (LG) had sought denial of the petition (so that it could file an IPR petition) did not render the institution decision outside the PTO’s authority. As to the anticipation determination, substantial evidence supported the Board’s determination. The opinion also rejects AT&T’s contention that the examiner shifted its basis for finding anticipation.

KEYWORDS: INTER PARTES REEXAMINATION; ANTICIPATION (YES); INSTITUTION DECISION