On January 4, 2017, the Federal Circuit granted a motion for en banc rehearing in Wi-Fi One LLC v. Broadcom Corp., No. 2015-1944. In the original Wi-Fi One decision, the court held that, due to binding precedent, it could not review the PTAB’s decision to institute IPR over the Patent Owner’s assertions that the petition was time-barred because parties allegedly in privity with Petitioner had been sued more than one year before the IPR petition was filed.
The Federal Circuit requested briefing on whether it should overrule that binding precedent, 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 USPTO’s determination that the petitioner satisfied the timeliness requirement governing the filing of IPR petitions.
The Federal Circuit’s decision will be important going forward in light of the numerous IPR challenges to patents being brought at the PTAB.
Stay tuned to Big Molecule Watch for further updates.