CAFC affirms ED Va in Odyssey case

This case presents three Administrative Procedure Act
challenges involving the United States Patent and Trademark Office. Odyssey challenges procedural actions taken
by the PTO in two patent applications and makes a third
facial challenge to certain PTO procedural rules governing
practice before the Patent Trial and Appeal Board in ex
parte appeals. The Eastern District of Virginia dismissed
the former two challenges for lack of subject matter jurisdiction because the PTO had not taken final agency action.
It dismissed the latter challenge as barred by 28 U.S.C.
§ 2401, the six-year statute of limitations for challenges to
agency action. Because we agree with the district court
that the first two challenges concern non-final agency action and the latter challenge is barred by § 2401, we affirm.