Yesterday, the Federal Circuit ruled en banc that decisions by the Patent Trial and Appeal Board (“PTAB”) concerning the timeliness of inter partes review petitions under 35 U.S.C. § 315(b) can be appealed.  Wi-Fi One, LLC v. Broadcom Corp.  As we previously reported here, a Federal Circuit panel previously held that 35 U.S.C. § 314(d) barred appeal of any inter partes review institution decision.

The en banc court overruled this prior decision, relying on the “strong presumption” favoring judicial review of administrative actions.  Specifically, the Federal Circuit held that the language of § 314(d) stating that “[t]he determination by the director whether to institute an inter partes review under this section shall be final and non-appealable” only limits appeals of determinations under § 314.  Therefore, because the time-bar is codified in § 315, PTAB decisions regarding timeliness are appealable.

Although the court limited its holding to PTAB timeliness decisions under § 315(b), the holding indicates that other institution-related IPR decisions—such as estoppel or real party in interest—may also be appealable to the Federal Circuit.