CAFC sustains reasoning of Achates in Wi-Fi v. Broadcom

The outcome: This is an appeal from a decision of the Patent Trial
and Appeal Board in an inter partes review. The Board
held various claims of a patent owned by Wi-Fi One, LLC
(“Wi-Fi”), to be anticipated. We affirm.

Judge Reyna wrote separately:


I agree with the majority that Wi-Fi One has neither
shown Broadcom to be in privity with the Texas Defendants
nor a real party in interest in the Texas litigation.

I write separately to convey my sense that this Court
has jurisdiction to address the time bar question despite
the statutory requirement that the Board’s institution
decisions “shall be final and nonappealable.” 35 U.S.C.
§ 314(d). I believe that the legal distinction that exists
between an “institution” decision and a final decision
compels that the decision in this case is a final decision,
not an institution decision. A final decision concerning
the time bar set forth by 35 U.S.C. § 315(b) should be
subject to review.