On January 8, 2018, the Federal Circuit issued its en banc decision in Wi-Fi One, LLC v. Broadcom Corp., No. 2015-1944. The Federal Circuit originally held that due to binding precedent, a time-bar determination under 35 U.S.C. § 315(b) is final and nonappealable under 35 U.S.C. § 314(d). As we reported here, the Federal Circuit granted a motion for en banc hearing and requested briefing on whether it should overrule that binding precedent and hold that the USPTO’s determinations as to the timeliness of IPR petitions are appealable.
In its en banc decision, the Federal Circuit held that § 314(d) does not bar judicial review of time-bar determinations under § 315(b). The court found that § 314(d) bars review of the Director’s decision to institute an IPR under § 314, which is limited to determinations related to the preliminary patentability merits of the claims. The court determined that the Director’s authority under § 315(b) not to institute an IPR on an untimely petition is not related to its authority under § 314, and therefore, § 314(d) does not prohibit reviewability of time-bar decisions under § 315(b).