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IP Alert: Federal Circuit Grants En Banc Review of IPR Time Bar

January 4, 2017

Today, the U.S. Court of Appeals for the Federal Circuit granted Wi-Fi One, LLC’s petitions for en banc reconsideration of three appeals, each from inter partes review proceedings at the U.S. Patent and Trademark Office (USPTO). The decision is Wi-Fi One, LLC v. Broadcom Corp. Each appeal presents the question of whether the federal courts may review the USPTO’s determination that the petitioner’s petition was filed in a timely fashion. In a 2015 decision, Achates Reference Publishing, Inc. v. Apple Inc., a panel of the Federal Circuit had held that the court could not review the USPTO’s decisions that Broadcom’s petitions were timely filed.

The court will now consider the following question en banc:

“Should this court overrule Achates Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015) and hold that judicial review is available for a patent owner to challenge the PTO’s determination that the petitioner satisfied the timeliness requirement of 35 U.S.C. § 315(b) governing the filing of petitions for inter partes review?"

Fitch Even attorneys are monitoring the progress of this case and will report further once the Federal Circuit has issued its decision.

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