On February 4, 2015, the Federal Circuit issued a 2-1 precedential opinion in In re Cuozzo Speed Technologies, LLC, Appeal No. 14-1301 (Fed. Cir. Feb. 4, 2014), in which it affirmed the Patent Trial and Appeal Board (PTAB) in the first appeal of a final written decision in an inter partes review (IPR) decided by the Court. The opinion addresses a series of significant issues: (1) the scope of judicial review for the decision instituting trial; (2) the applicability of the broadest reasonable interpretation (BRI) claim construction standard to post-grant proceedings; (3) the scope of the PTAB’s rulemaking authority under the America Invents Act (AIA); and (4) the PTAB’s rules governing amendments in post-grant proceedings. The Court affirmed the PTAB on all these issues, effectively adopting the positions set forth by the PTO solicitor.

The decision on institution is final and non-appealable -

In holding that it lacked jurisdiction to review the PTAB’s decision to institute even after a final decision, the Court focused on the AIA’s statutory language. The majority opinion relied on prior precedent holding that 35 U.S.C. § 314(d) bars immediate review of a decision to institute IPR. It then concluded that § 314(d) similarly “prohibits review of the decision to institute IPR even after a final decision. On its face, the provision is not directed to precluding review only before a final decision. It is written to exclude all review of the decision whether to institute review.”