Federal Circuit: Mandamus Petitions Challenging Institution Denial Are Unlikely to Show Right to Relief

In Mylan Laboratories LTD. v. Janssen Pharmaceutica, N.V., No. 2021-1071 (Mar. 12, 2021), the Federal Circuit granted Janssen’s motion to dismiss Mylan’s appeal. Mylan appealed the Board’s decision not to institute inter partes review of Janssen’s U.S. Patent No. 9,439,906, and sought mandamus relief under the All Writs Act. The Court determined it lacked jurisdiction over Mylan’s direct appeal under 35 U.S.C. § 314(d). Although the Court held it had proper jurisdiction over the request for mandamus, the Court held that Mylan failed to show a clear right to relief. In dicta, the Court expressed its belief that it would be “difficult to imagine a mandamus petition that challenges a denial of institution and identifies a clear and indisputable right to relief.”

For a more detailed analysis of this case, please see Finnegan’s Federal Circuit IP blog.