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Wi-Fi One, LLC v. Broadcom Corp.

PTAB Assessment of Time Bar Issues is Judicially Reviewable

Wi-Fi One, LLC v. Broadcom Corp., 2018 U.S. App. LEXIS 387 (Fed. Cir. Jan. 8, 2018) (En banc: REYNA for the Court (joined by Prost, Newman, Moore, O’Malley, Wallach, Taranto, Chen, Stoll); Concurrence by O’Malley; Dissent by Hughes (joined by Lourie, Bryson, Dyk)) (PTAB) (4 of 5 stars)

Fed Cir holds that the PTAB’s determination that Broadcom’s petition for IPR was not time-barred is judicially reviewable. The opinion reasons that the statement that IPR institution decisions are nonappealable (in § 314(d)) is expressly limited to institutions decisions “under this section,” i.e., institution decisions evaluating whether the petitioner is likely to prevail as set forth in § 314(a). “It does not address any other issue relevant to an institution decision.” Op. at 16. Because the time-bar provision is in a different section (§ 315(b)), it is not addressed by the nonappealability restriction of § 314(d). The opinion reasons that this approach is consistent with the approach of Cuozzo, 136 S. Ct. 2131 (2016), which when discussing § 314(d) noted that it barred judicial review of the PTAB’s assessment of a “reasonable likelihood of success” for the petition. The opinion overrules the contrary reasoning of Achates, 803 F.3d 652 (Fed. Cir. 2015).

Concurrence: Judge O’Malley would have reached the same outcome, but would have analyzed the PTAB’s time-bar assessment as an instance of the PTAB exceeding its statutory authority to undertake an IPR.

Dissent: Judge Hughes views the majority’s reading of § 314(d) as excessively narrow, and incompatible with the statute and contrary to Cuozzo. In his view, Cuozzo rejected the notion that § 314(d) was limited to barring review of reasonable-likelihood-of-success determinations, and specifically held that Congress had “told the Patent Office to determine whether the inter partes review should proceed, and it has made the agency’s decision ‘final’ and ‘nonappealable.’” Dissent at 6 (quoting Cuozzo, 136 S. Ct. at 2141).

KEYWORDS: INTER PARTES REVIEW; TIME BAR; EN BANC; JUDICIAL REVIEW