Courts Can Review the PTAB’s Time-Bar Determination of IPR Institution

In Wi-Fi One, LLC v. Broadcom Corp., No. 2015-1944 (Fed. Cir. Jan. 8, 2018), the Federal Circuit, en banc, held that the Patent Trial and Appeal Board (PTAB)’s time-bar determination under § 315(b) is reviewable. The Court remanded the earlier decision in Wi-Fi One, LLC v. Broadcom Corp., 837 F.3d 1329 (Fed. Cir. 2016), which summarily affirmed the Board’s determination, holding that the time-bar determination is non-reviewable.

Broadcom filed, and the Board instituted review of, three petitions for IPR, rejecting Wi-Fi’s argument that the petitions were time-barred under 35 USC § 315(b). Wi-Fi appealed the Board’s Final Written Decision, asking the Court to reverse or vacate the Board’s time-bar determinations. Sitting en banc, the Court overruled previous case precedent, holding that the time-bar determination is judicially reviewable. The Court emphasized the “strong presumption” favoring judicial review of administrative actions and the absence of clear and convincing indication in the AIA regarding Congress’s intent to bar judicial review of § 315(b) time-bar determinations. The Court then remanded the case for the panel to consider the merits of Wi-Fi’s time-bar appeal.

For more information, also see Finnegan’s write-up on the AIA blog.