Patent Riffs and Links – Wi-Fi One (CAFC, En Banc)

“Appeal Number: 15-1944. Date: Monday, January 8, 2018”

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“A federal appeals court on Monday said patent owners can appeal determinations by the Patent Trial and Appeal Board that inter partes review proceedings were commenced within the statute of limitations.”

Appealable? “Today’s en banc Federal Circuit decision in Wi-Fi One creates an exception to the broad rule of non-appealability of institution decisions, holding that the Federal Circuit may, on appeal from a Final Written Decision of the PTAB, review the PTAB’s decision regarding whether an IPR petition is subject to the one-year bar of Section 315(b). The Court explained 315(b) as a limit on the agency’s jurisdictional authority that should be appealable, distinguishing more “closely related” institution disputes that touch upon the merits of the IPR decision.

Federal Circuit Opens Door to Timeliness Appeals in PTAB Cases | LAW
“Orrick, Herrington & Sutcliffe partner Bas de Blank, who wasn’t involved in the case, said the ruling may not help patent owners much if the PTAB doesn’t allow discovery into relationships between parties. Discovery at the PTAB is limited to keep the process speedy and inexpensive. ‘If broader discovery is allowed, that could change things, de Blank said…Baker Botts partner Eliot Williams said discovery related to privies and real parties is often provided in the district court, but usually under a confidentiality order.”

Wi-Fi One vs. Broadcom May Reshape PTAB Trial Proceedings | IPWATCHDOG
A look back to May 2017… “So, why does this case have the potential to reshape the conduct of PTAB Trial proceedings? Today, no PTAB institution decisions are reviewable, except for a narrow issue applicable only in Covered Business Method Reviews.
‘If the Federal Circuit opens the door to reviewing PTAB institution decisions in Inter Partes Reviews, it would likely generate numerous appeals as parties seek to test the limits of this new reviewability, [Eliot D. Williams, a partner at Baker Botts] said…In addition, the Court will need to address the question of when these appeals may be brought.”