The en banc Federal Circuit in Wi-Fi One reverses the panel decision of Achates

The question presented to the CAFC for en banc review:


The question presented for en banc rehearing is:
Should this court overrule 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 PTO’s determination
that the petitioner satisfied the timeliness
requirement of 35 U.S.C. § 315(b) governing the
filing of petitions for inter partes review?
Wi-Fi One, LLC v. Broadcom Corp., 851 F.3d 1241, 1241
(Fed. Cir. 2017).



The outcome in Wi Fi One:


The question before us is whether the bar on judicial
review of institution decisions in § 314(d) applies to timebar
determinations made under § 315(b). In Achates
Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652, 658
(Fed. Cir. 2015), a panel of this court held in the affirmative
that a § 315(b) time-bar determination is final and
nonappealable under § 314(d). Today, the court revisits
this question en banc.

We recognize the strong presumption in favor of judicial
review of agency actions. To overcome this presumption,
Congress must clearly and convincingly indicate its
intent to prohibit judicial review. We find no clear and
convincing indication of such congressional intent. We
therefore hold that the time-bar determinations under
§ 315(b) are appealable, overrule Achates’s contrary
conclusion, and remand these cases to the panel for
further proceedings consistent with this opinion.




The issue, 314 vs, 315:


In § 314, subsection (a) prescribes the threshold “determin[ation]”
required for the Director to institute: a
“reasonable likelihood” that the petitioner will succeed in
its patentability challenge to at least one of the challenged
patent claims. Subsections (b) and (c) prescribe
the timing of and notice requirements for the institution
decision. And § 314(d) addresses judicial review of the
Director’s IPR institution determination under § 314.
Specifically, § 314(d) provides that “[t]he determination
by the Director whether to institute an inter partes review
under this section shall be final and nonappealable.”2
(emphasis added).
(...)
The remainder of the IPR-related provisions of the
AIA go beyond the preliminary procedural requirements
and the preliminary determination regarding likely
unpatentability. Section 315, for example, governs the
relationship between IPRs and other proceedings conducted
outside of the IPR process. The provision at issue
in this appeal, § 315(b), provides that “[a]n inter partes
review may not be instituted if the petition requesting the
proceeding is filed more than 1 year after the date on
which the petitioner, real party in interest, or privy of the
petitioner is served with a complaint alleging infringement
of the patent.” This one-year time bar does not
apply to a request for joinder under § 315(c).



The CAFC found that the "strong presumption" favoring review,
in the absence of an explicit negation of review, required
reversal of Achates:


Accordingly, if a statute is “reasonably susceptible” to an
interpretation allowing judicial review, we must adopt
such an interpretation. Kucana v. Holder, 558 U.S. 233,
251 (2010); Gutierrez de Martinez, 515 U.S. at 434.
In view of this strong presumption, we will abdicate
judicial review only when Congress provides a “clear and
convincing” indication that it intends to prohibit review.
Cuozzo, 136 S. Ct. at 2140; see Lindahl v. Office of Pers.
Mgmt., 470 U.S. 768, 778 (1985); Block, 467 U.S. at 349–
50; Return Mail, Inc. v. U.S. Postal Serv., 868 F.3d 1350,
1357 (Fed. Cir. 2017).
We find no clear and convincing indication in the specific
statutory language in the AIA, the specific legislative
history of the AIA, or the statutory scheme as a whole
that demonstrates Congress’s intent to bar judicial review
of § 315(b) time-bar determinations. See Cuozzo, 136 S.
Ct. at 2140. The parties have not cited, nor are we aware
of, any specific legislative history that clearly and convincingly
indicates congressional intent to bar judicial
review of § 315(b) time-bar determinations. We review
the statutory language and the statutory scheme in turn.