The Patent Trial and Appeal Board (PTAB) of the USPTO recently reaffirmed a holding that its institution decisions regarding whether or not to proceed with an inter partes review (IPR) of an issued patent are "final and nonappealable" under 35 U.S.C. § 314(d). In this case, Medtronic, Inc. v. Robert Bosch Healthcare Sys. Inc., Fed. Cir. No. 2015-1977 (10/20/2016), the PTAB terminated an IPR because the petitioner failed to disclose all real parties in interest, which is subject to a ban on judicial review in accordance with 314(d).
Today, the US PTO issued revisions to the Rules of Procedure for the Patent Trial and Appeal Board, at 81 Fed. Reg. 18750. This Federal Register Notice includes various changes to the duty of candor, the rules on pleading page limits, as well as grounds for instituting IPR and PGR proceedings.
In an ongoing dispute between VirnetX Inc. vs. Apple Inc., Apple Inc. had challenged the validity of two asserted VirnetX patents (US Patent Nos. 6,502,135 and 7,490,151). Apple was initially unsuccessful in its IPR institution requests, because it was time barred under the IPR statute of limitations, which requires a PTAB IPR challenge to be brought within 1-year from the date that the complaint is served on the defendant. After several failed attempts, Apple Inc. recently circumvented the IPR statute of limitations, via 35 U.S.C. 315(c) joinder to another petitioner, The Mangrove Partners Master Fund, Ltd.
The Supreme Court has granted writ of certiorari in a pending Inter Partes Review (IPR) challenge in Cuozzo Speed Tech v. Lee. The questions on review relate to whether the court of appeals erred in holding that in IPR proceedings, the PTAB may construe claims in an issued patent according to their broadest reasonable interpretation, rather than their plain and ordinary meaning, as well as on whether the PTAB's decision to institute an IPR proceeding is itself unreviewable.