WiFi One, LLC v. Broadcom Corp., Fed. Cir., No. 2015-1944, amicus brief filed 2/23/2017
The statute (35 U.S.C. 314(d)) barring appeals of Patent Trial and Appeal Board decisions to institute inter partes review proceedings (IPR) does not apply to the statute (35 U.S.C. 315(b)) prohibiting the Board from instituting an IPR on a petition filed more than one year after the petitioner was sued for infringement, according to an AIPLA amicus brief to the en banc Federal Circuit.
The brief noted that the non-appealability provision in Section 314 is limited to determinations “under this section,” which are primarily concerned with the sufficiency of the petition. The brief explained that the time bar under Section 315, by contrast, is an express limitation on the authority of the Board to institute an IPR.