April 2015

Spotlight Info

In Exela Pharma Sciences, LLC v. Lee, No. 13-1206 (Fed. Cir. Mar. 26, 2015), the Federal Circuit affirmed a dismissal of a challenge under the APA on the ground that PTO revivals are not subject to third-party collateral challenge, thereby precluding review regardless of whether the claims were time-barred.  The Court held that “[t]he Patent Act’s ‘intricate scheme for administrative and judicial review of PTO patentability determinations,’ and ‘the Patent Act’s careful framework for judicial review at the behest of particular persons through particular procedures’ demonstrate that third party challenge of PTO revival rulings under the APA is not legislatively intended.”  Slip op. at 8 (quoting Pregis Corp. v. Kappos, 700 F.3d 1348, 1357 (Fed. Cir. 2012)).  See this month’s edition of Last Month at the Federal Circuit for a full summary of this decision.