Posts Tagged: "appellate review"

Can the Federal Circuit use Rule 36 Affirmances in PTAB Appeals?

Inventor advocacy group US Inventor recently filed an amicus brief with the U.S. Supreme Court asking the nation’s highest court to grant a petition for writ of certiorari in Capella Photonics v. Cisco Systems. This case, if taken up on appeal, will require the Supreme Court to answer whether the Court of Appeals for the Federal Circuit operates in violation of 35 U.S.C. § 144, the statute governing how the Federal Circuit must respond to appeals of decisions from the U.S. Patent and Trademark Office. In other words, can the Federal Circuit use Rule 36 to issue an affirmance without opinion of decisions appealed from the Patent Trial and Appeal Board (PTAB).

The Supreme Court, the Federal Circuit, and the Patent Office Walk Out of an Appellate Review Bar: Changing Standards For Appellate Review of IPR Institution Decisions

This article reviews recent Federal Circuit and Supreme Court decisions addressing the scope of appellate review of institution of inter partes review (IPR) by the Patent Trial and Appeal Board. The America Invents Act, 35 U.S.C. § 314(d), provides that: “[t]he determination… whether to institute an inter partes review under this section shall be final and nonappealable.” Federal courts initially interpreted Section 314(d) to bar appellate review of institution decisions entirely. However, recent decisions have narrowed Section 314(d) and expanded the scope of appellate review of matters decided by the Board at institution. This article will review decisions interpreting Section 314(d) to date, and explain how recent precedents have created new opportunities for appellate review of the Board’s decisionmaking in IPR proceedings.