The 2011 America Invents Act created procedures to challenge the validity of an issued patent before the U.S. Patent and Trademark Office, including inter partes review (IPR), post-grant review (PGR), and covered business method review (CBM). Each requires a threshold decision by the PTO whether to “institute” a proceeding. By statute, Congress declared that institution decisions are nonappealable. There has nevertheless been significant litigation, including in the Supreme Court, about whether and when an institution decision may be appealed. We report here on the current state of the law, and offer suggestions for practitioners.
Statute and Cases
The IPR statute states, “No Appeal.—The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.” 35 U.S.C. §314(d). For PGRs and CBMs, Congress likewise wrote, “No Appeal—The determination by the Director whether to institute a post-grant review under this section shall be final and nonappealable.” 35 U.S.C. §324(e).
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
