"Over the past several years, the court has systematically closed every door that petitioners have tried to open. Most recently, it denied a wave of mandamus petitions challenging Director Squires' discretionary denials, holding that 35 U.S.C. § 314(d) bars review of institution decisions even when petitioners raise constitutional and APA claims. In its 2023 decision in this very case, the court held that substantive challenges to the NHK-Fintiv framework were themselves unreviewable."
"Writing for a panel that included Judges Lourie and Chen, Judge Taranto held that the NHK-Fintiv instructions are a "general statement of policy" exempt from APA rulemaking requirements under 5 U.S.C. § 553(b). The reasoning rests on a structural feature of po"
The Federal Circuit reinforced the USPTO Director's broad discretionary power at the IPR institution stage, repeatedly rejecting petitioners' attempts to obtain review. The court held that 35 U.S.C. § 314(d) bars judicial review of institution decisions, including constitutional and APA challenges. The court previously deemed substantive attacks on the NHK-Fintiv framework unreviewable. In the new decision, the court concluded that the NHK-Fintiv instructions constitute a general statement of policy exempt from APA notice-and-comment rulemaking under 5 U.S.C. § 553(b), further limiting procedural avenues to challenge institution denials.
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