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Federal Circuit: The PTAB Determination of the Timeliness of an IPR Petition Is Part of the Initial Decision to Institute an IPR, and Is Not Reviewable on Appeal
On Sept. 30, 2015, a Federal Circuit panel of Chief Judge Prost, Judge Lourie, and Judge Linn issued a unanimous opinion, authored by Judge Linn, in Achates Reference Publishing, Inc. v. Apple Inc., Case No. 2014-1767, -1788. The panel held that it could not consider Achates' appeal either on the timeliness of Apple's inter partes review (IPR) petition or on its merits, and dismissed the appeals.
Achates first asserted its patent in district court against QuickOffice, Inc. One year after, Achates joined Apple to the suit. Apple then filed for IPR of Achates' patents. In response to Apple's petitions, Achates argued before the Patent Trial and Appeal Board (PTAB) that Apple's IPR was time-barred under 35 U.S.C. '315(b): “An 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. The time limitation set forth in the preceding sentence shall not apply to a request for joinder.” Slip op. at 4 (citing 35 U.S.C. '315(b)). The PTAB determined that “none of the codefendants were real parties in interest or privies of Apple,” instituted the IPR proceedings, and invalidated all claims. Id. at 4-5. Achates appealed the PTAB's ruling on the applicability of the '315(b) time bar and its denial of Achates' motion for discovery to show the relevance of the '315(b) time bar through Apple's relationship with codefendants in the case.
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