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Employment Agreement Assignment Provisions Don’t Reach Post-Employment Inventions

The US Court of Appeals for the Federal Circuit rejected a biotechnology company’s argument that assignment provisions in its employment agreements granted ownership rights in post-employment inventions. Bio-Rad Laboratories, Inc. v. Int’l Trade Comm’n, Case No. 20-1785 (Fed. Cir. Apr. 29, 2021) (Taranto, J.)

10X filed an International Trade Commission (ITC) complaint against Bio-Rad, alleging that Bio-Rad’s microfluidic systems infringed 10X’s gene sequencing patents. Bio-Rad raised an affirmative defense alleging that it co-owned the asserted patents because two of the named inventors, formerly employed by Bio-Rad and its predecessor QuantaLife before forming 10X, conceived the ideas embodied in the patents while they were still employed by Bio-Rad. The two inventors had executed employment agreements, including provisions requiring disclosure and assignment of intellectual property created during their employment with Bio-Rad. The two inventors left Bio-Rad and formed 10X several months before the earliest conception date of the asserted patents.

The ITC administrative law judge rejected Bio-Rad’s co-ownership defense, concluding that Bio-Rad had not shown the inventive concept of the asserted patents was conceived before the inventors left Bio-Rad. The administrative law judge also found that Bio-Rad infringed 10X’s patents and that 10X satisfied the technical domestic industry requirement by practicing the asserted patents. The ITC affirmed the administrative law judge’s determinations and also found that the asserted claims were not invalid for indefiniteness. Bio-Rad appealed.

Bio-Rad argued, among other things, that the ITC erred in not finding co-ownership of the asserted patents based on the assignment provisions. Bio-Rad also contended that during their employment at Bio-Rad, the two inventors had conceived the ideas that contributed to the inventions reflected in the 10X patents, and the invention assignment provisions of their employment agreement required assignment of their interest to Bio-Rad.

The Federal Circuit affirmed the ITC. On the co-inventorship issue, the Court adopted the ITC’s conclusion and found that Bio-Rad had no ownership interest in the asserted patents, explaining that the assignment provisions did not apply to ideas developed during employment solely because the ideas ended up contributing to a post-employment patentable invention. The Court found that the language was limited to a grant of actual intellectual property, i.e., subject matter protectable as a patent created during the term of employment with Bio-Rad. The Court reasoned that a person’s work that contributes, even significantly, to a later patentable invention does not create protectable intellectual property until a patentable invention is made, and that therefore, the assignment provisions did not reach the ideas that Bio-Rad alleged were conceived during the inventors’ Bio-Rad employment.

The Court also noted policy reasons for limiting the reach of the assignment provisions, including the difficult compliance issues raised by requiring assignment of rights in post-employment inventions. The Court explained that such provisions might deter a former employee from pursuing work related to their prior work, or deter a potential future employer from hiring that individual to work in an area similar to that in which they had prior experience. The Court also agreed with the ITC’s conclusion that [...]

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If You Can’t Build it, They Won’t Come: No Obviousness Based on Fanciful Engine Design

Reaffirming that a person of ordinary skill in the art must have been able to actually create a disclosure at the time of invention in order for it to serve as an obviousness reference, the US Court of Appeals for the Federal Circuit reversed a decision by the Patent Trial & Appeal Board (the Board) in an inter partes review (IPR), concluding that a patent covering certain turbofan engine technology was not rendered obvious by a prior art publication that could not be realized into practice. Raytheon Techs. Corp. v. General Electric Co., Case No. 20-1755 (Fed. Cir. Apr. 16, 2021) (Chen, J.)

The issue on appeal was relatively straightforward. In an IPR, GE challenged as obvious a Raytheon patent that covered a specific design of geared gas turbine engine that provided for a “power density” higher than previously invented turbine engines. The patent defined “power density” as a “sea-level-takeoff thrust” divided by the engine turbine volume. During the IPR, GE relied on a 1987 NASA technical memorandum as art and argued that the reference, which envisioned superior performance characteristics based on an advanced engine that was made entirely of composite materials, rendered the challenged claims obvious. The parties did not dispute that this engine was unattainable in 1987, and may still be impossible today, because the envisioned composite materials do not yet (and may never) exist. The memorandum disclosed several performance factors, but not power density, sea-level-takeoff thrust or turbine volume. Nonetheless, GE argued, and the Board agreed, that the memorandum disclosed performance parameters that would have permitted an ordinarily skilled artisan to derive power densities that would have fallen within the range claimed in Raytheon’s patent.

On appeal, the Federal Circuit agreed with Raytheon, concluding that the imaginary engine of the NASA memorandum could not serve as an invalidating reference. In reversing the Board, the Federal Circuit reiterated two bedrock principles of obviousness law:

  • An obviousness reference must be enabled by the knowledge of an ordinarily skilled artisan at the time of the invention (but need not be self-enabling).
  • An invention cannot be rendered obvious by a non-self-enabling reference if no other prior art evidence or reference enables the non-self-enabling reference.

In addition, when a reference’s enablement is challenged, the party offering the reference bears a burden to establish that the reference, itself or in combination with other contemporaneous knowledge, was enabled.

Applying these principles here, the Federal Circuit determined that GE had not met its burden to show that the memorandum was indeed enabled. The Board, wrongly in the Court’s view, focused solely on whether an ordinarily skilled artisan was taught the parameters to ascertain a power density, rather than whether the prior art disclosed a turbofan engine possessing the requisite power density. Finding no evidence in the record to conclude that “a skilled artisan could have made the claimed turbofan engine with the recited power density,” the Court reversed.

Practice Note: Although this case does not break new obviousness ground, it reinforces the general [...]

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Old Dawg, Still the Same Tricks: Bankruptcy Asset Successor is Also Inter Partes Re-Exam Successor

The US Court of Appeals for the Federal Circuit issued a modified opinion correcting certain facts relating to a decision in which it originally concluded that because a plaintiff was a successor in bankruptcy, it was a successor in an inter partes re-examination. Mojave Desert Holdings, LLC v. Crocs, Inc., Case No. 20-1167 (Fed. Cir. Apr. 21, 2021 (modified), Feb. 11, 2021 (original)) (Dyk, J.)

In its original decision, the Court found that Mojave should be substituted for the original requestor following the sale of the original re-examination requestor’s right, title and interest in, to and under its assets to a holding company, which further assigned such assets and interests to Mojave. After the decision, Crocs moved for reconsideration because the original opinion incorrectly found that Mojave was the original requestor’s successor-in-interest. Instead, Crocs argued that Mojave had simply acquired assets from the original requestor, including litigation claims. Crocs argued that this distinction necessitated reconsideration of the original decision.

In response, the Federal Circuit issued a modified opinion that, while clarifying the facts, did not change the ultimate outcome. The Court found that the transfer of assets, including rights and claims of past acts of infringement, provided necessary Article III standing to maintain the proceeding. Accordingly, the Court allowed Mojave to be substituted for the original requestor.




Inventions Not Made Under Employment Agreement

Applying a “middle ground” standard of review, the US Court of Appeals for the First Circuit affirmed a district court’s decision denying a company’s request for a declaratory judgment asking a former employee to assign patent rights to the company under the employment and separation agreements, because there were inconsistencies in the jury verdict. Covidien LP; Covidien Holding Inc. v. Brady Esch, Case No. 20-1515 (1st Cir. Apr. 8, 2021) (Gelpi, CDJ.)

During his employment with Covidien, Esch signed employment and separation agreements, which required a duty of confidentiality, an obligation to disclose any invention created during his employment with Covidien or within one year after leaving Covidien, and assignment of such inventions to Covidien. After his termination, Esch founded his own company (Venclose) and filed patent applications that were assigned to Venclose. Covidien sued Esch for breach of confidentiality and breach of obligation to disclose inventions.

At trial, the jury found that Esch breached his duty of confidentiality by publication of the patent applications, but did not breach his obligation to disclose inventions to Covidien under the agreements (question 3 on verdict form). The verdict form also included questions 6-8 concerning whether inventions were made under the agreements, but the jury was not required to answer these questions if the answer to question 3 was negative. After trial, Covidien moved for a declaratory judgment requesting that Esch assign patent rights to Covidien pursuant to the assignment provision of the agreements. The district court denied the motion, finding that the jury verdict questions were “internally inconsistent” and that “the jury’s ‘decisive’ negative answer to Question 3 could only be read as a factual finding that no ‘Inventions’ were made that are encompassed under the Employment Agreement.” Covidien appealed.

The First Circuit agreed with the district court, applying a “middle ground” standard, which is more rigorous than abuse of discretion but less open-ended than de novo review. This standard of review “requires attentively digest[ing] the facts and the district court’s stated reasons.” The Court found that the district court sufficiently addressed the agreements under applicable Massachusetts law and specifically explained the definition of “inventions” and the assignment requirement to the jury. The Court found that Covidien’s request that the jury should answer questions 6-8 regardless of the answer to question 3 was neither “substantively correct” nor “essential to an important issue,” and was an instruction “substantially covered in the charge.” Further, the Court found that the “internally inconsistent” jury verdict, namely that Esch met his disclosure obligation by violating his confidentiality duty via publication of the patent applications, could only be read as a factual finding that there were no inventions encompassed by the agreement. Accordingly, the First Circuit concluded that the district court did not abuse its discretion in denying Covidien’s post-trial declaratory judgment request.




Fourth Circuit Breathes New Life into Monopolization Suit

The US Court of Appeals for the Fourth Circuit revived an antitrust suit alleging that a pharmaceutical manufacturer illegally maintained its monopoly for its innovator drug by precluding competition beyond the expiration date of the patent covering the drug. The Court found that the case was filed within the statute of limitations because the antitrust claims did not accrue until the consumers were injured by paying supracompetitive prices for the drug after the patent expired. Baltimore v. Actelion Pharm., Ltd., Case No. 19-2233 (4th Cir. Apr. 13, 2021) (Niemeyer, J.)

Actelion received an exclusive license under a patent issued in 1994 for Tracleer, the “only oral treatment for pulmonary arterial hypertension.” Although Actelion’s patent for Tracleer expired in November 2015, no competitor brought a generic version of Tracleer to market. The mayor of Baltimore and Baltimore’s Government Employees Health Association (collectively, Baltimore) alleged that Actelion intended to “preclud[e] competition from generic drug manufacturers” by orchestrating a “multi-year scheme” to prevent multiple manufacturers from attempting to bring a generic version of the drug to market. According to the complaint, from 2009 to 2012, four generic drug manufacturers repeatedly requested samples of Tracleer from Actelion to develop generic versions of the drug. Potential entrants must obtain samples of a branded drug to demonstrate that a generic drug is bioequivalent to the branded drug—in this case, Tracleer. Baltimore alleged that Actelion refused consistently, stating it had the right to elect with whom it did business. Actelion also allegedly prevented distributors from selling Tracleer samples to generic drug manufacturers.

Baltimore alleged that by precluding generic competitors from the market, Actelion was able to maintain an illegal monopoly over Tracleer for three years after its patent expired and charge inflated prices for the drug in violation of § 2 of the Sherman Act and various state antitrust and consumer protection laws. Baltimore alleged that but for Actelion’s conduct, consumers would have purchased less expensive generic alternatives instead of branded Tracleer. Baltimore filed suit on November 19, 2018. The district court dismissed Baltimore’s complaint, finding that the majority of the claims were barred by the four-year statute of limitations. The district court found that the last overt anticompetitive act occurred in February 2014, when Actelion executed settlement agreements with several generic manufacturers. The district court rejected Baltimore’s argument that the claims accrued on the date of patent expiration (November 2015) or, in the alternative, from each sale of Tracleer at supracompetitive prices. Baltimore appealed.

The Fourth Circuit determined that the November 2018 suit was not time-barred by the statute of limitations. The Court found that although Actelion’s last overt anticompetitive act took place in 2014, the alleged harm to the plaintiffs did not begin until November 2015 when the patent expired. Section 4 of the Clayton Act provides a private right of action for violations of federal antitrust laws and states that any such action is “barred unless commented within four years after the cause of action accrued.” The Court further noted that the Supreme Court [...]

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No Second Bite at the Apple: Injury Must Be Imminent and Non-Speculative to Support Standing

The US Court of Appeals for the Federal Circuit ruled that a party did not have Article III appellate standing to obtain review of a final ruling of the Patent Trial & Appeal Board because the underlying district court proceedings had been dismissed with prejudice after a settlement and license agreement were reached. Apple Inc. v. Qualcomm Inc., Case Nos. 20-1561; -1642 (Fed. Cir. Apr. 7, 2021) (Moore, J.)

After Qualcomm sued Apple in district court, Apple filed petitions for inter partes review (IPR) of the asserted patent claims. The Board instituted on both petitions but found that Apple did not prove the challenged claims were obvious. Apple appealed the Board’s final written decisions finding non-obviousness.

While the IPR proceedings were pending, the parties settled their litigation worldwide. The settlement included a license to Apple and payment of royalties to Qualcomm. The parties filed a joint motion to dismiss Qualcomm’s district court action with prejudice, which the district court granted.

At the Federal Circuit, Qualcomm argued that Apple waived any argument to establish its appellate standing by failing to address or submit supporting evidence in its opening brief. However, the Federal Circuit exercised its discretion to reach the issue of standing, explaining that the issue of standing was fully briefed, there was no prejudice to Qualcomm, and the question of standing impacted these and other appeals. Qualcomm sought leave to file a sur-reply addressing Apple’s evidence and arguments on standing, and agreed that if its motions to file a sur-reply were granted, it would not suffer any prejudice, and that evaluating the evidence may resolve standing in other pending cases. The Court granted Qualcomm leave to file a sur-reply.

Apple argued that it had appellate standing based on its ongoing payment obligations that conditioned certain rights in the license agreement, the threat that Apple would be sued for infringing the two patents-at-issue after the expiration of the license agreement, and the estoppel effects of 35 USC § 315 on future challenges to the validity of the asserted patents. The Federal Circuit disagreed.

LICENSE RIGHTS

Distinguishing the 2007 Supreme Court case MedImmune v. Genentech (where standing was found based on license agreement payment obligations after analyzing evidence for injury in fact or redressability), the Federal Circuit explained that Apple did not allege that the validity of the patents-at-issue would affect its contract rights and ongoing royalty obligations. The license agreement between the parties involves tens of thousands of patents. Apple did not argue or present evidence that the validity of any single patent (including the two patents-at-issue) would affect its ongoing payment obligations, or identify any related contractual dispute that could be resolved through determining the patents-at-issue’s validity. Accordingly, the Court concluded that Apple failed to establish Art. III standing under MedImmune.

THREAT OF POST-LICENSE SUITS

Apple’s second argument was based on the possibility that Qualcomm might sue Apple for infringing the patents-at-issue after the license expired. The Federal Circuit found the mere possibility of any such suit [...]

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If it’s Not Legit, You Can’t Admit

The US Court of Appeals for the Federal Circuit affirmed a district court ruling of non-infringement based on the inadmissibility of unauthenticated printouts of source code as evidence. Wi-LAN Inc. v. Sharp Elecs. Corp., Case No. 20-1041 (Fed. Cir. Apr. 6, 2021) (Dyk, J.)

In 2015, Wi-LAN brought two separate patent infringement suits against Sharp Electronics and Vizio, both of which alleged direct and induced infringement of various claims of two Wi-Lan patents. The cases were managed in parallel by the district court, but consolidated on appeal. In both cases, the district court entered a stipulation of non-infringement with respect to one of the patents, which “relates generally to multimedia encoders and specifically [to] an integrated multimedia stream multiplexer,” based on Wi-LAN’s concession that it could not prove infringement under the district court’s construction of two claim terms. On appeal, the Federal Circuit had little difficulty concluding that the district court’s constructions were correct and affirming its ruling of non-infringement.

With respect to the other patent, the district court granted summary judgment of non-infringement, holding that Wi-LAN lacked sufficient admissible evidence to prove direct infringement. The involved patent is directed to “methods to display interlaced video on [a] noninterlaced monitor,” also known as “deinterlacing.” The deinterlacing functions of Sharp and Vizio’s televisions reside on each of the television’s “system-on-chip.” To establish that the source code underlying these deinterlacing functions practiced the patented methods, Wi-LAN filed (and subsequently dismissed without prejudice) additional lawsuits against third-party chip manufacturers from which it obtained source code printouts—purportedly reflecting the implementation of the deinterlacing process in a specified list of chips used in Sharp and Vizio’s televisions—along with declarations from employees of the manufacturers purporting to authenticate the source code printouts. The district court held that the source code printouts were inadmissible and that Wi-LAN therefore had failed to raise a genuine issue of material fact as to non-infringement. On appeal, Wi-LAN presented three theories as to why the district court erred in finding this evidence inadmissible, all of which the Federal Circuit rejected.

First, Wi-LAN argued that the source code printouts constituted a business record and thus were admissible as an exception to the hearsay rule under Federal Rule of Evidence 803(6). Specifically, Wi-LAN argued that it properly authenticated the printouts through the declarations of the chip manufacturers’ employees. The Federal Circuit acknowledged that declarations are typically used at summary judgment as a proxy for trial testimony, but explained that they cannot be used that way unless the witness would also be available to testify at trial. Because Wi-LAN conceded that it did not think it would be able to force the chip manufacturers’ employees to testify at trial, the Court found that the declarations could not be used as a substitute for trial testimony to authenticate the printouts and that the printouts therefore were not properly authenticated pursuant to Rule 803(6)(D).

Wi-LAN also argued that the declarations themselves constituted a business record. Because they were procured specifically for the purpose of litigation, however, [...]

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Blame the Lawyer: In Exceptional Case, Plaintiff’s Attorney Liable for Court and Appellate Fees

The US Court of Appeals for the Federal Circuit affirmed an award of attorneys’ fees against a plaintiff and his counsel, and further granted defendants’ motion for appellate attorneys’ fees and double costs where plaintiff had brought baseless claims, engaged in litigation misconduct and brought a frivolous appeal. Pirri v. Cheek, Case No. 20-1959 (Fed. Cir. Mar. 22, 2021) (non-precedential) (per curiam).

When Plaintiff saw Defendant present her patented idea for “online dating in reverse” on the television show “Shark Tank,” he knew that she had gotten the idea from his therapist, Richards, who had betrayed his confidence. Through his counsel, Plaintiff sued Richards as well as Defendant, her company and her co-inventors (whom he never served) (collectively, Cheek) for joint inventorship of the patent (Richards was not a named inventor), and several state law claims, including breach of fiduciary duty, fraud, conversion and unjust enrichment. At the initial pretrial conference, Plaintiff voluntarily dismissed some of the state law claims and the joint inventorship claim against Richards. The district court dismissed the remaining state law claims as “obviously time-barred,” leaving only the joint inventorship claim against Cheek. Defendant moved for Rule 11 sanctions, which the district court denied.

Plaintiff sought leave to amend the complaint to add several new defendants and claims, but the district court denied the motion as futile. Notwithstanding the dismissal of Richards from the suit, Plaintiff subpoenaed Richards’s employment records, but withdrew the subpoena when Richards moved to quash. Plaintiff requested a discovery extension, which the Court denied as relating to irrelevant material. Just before the close of discovery, Plaintiff moved for voluntary dismissal with prejudice. Defendant opposed the dismissal motion in order to seek fees, and the district court denied the motion. Six days later, Plaintiff renewed the motion for dismissal, arguing that the previous denial of Rule 11 sanctions collaterally estopped a fees award. Again, Defendant opposed, and the Court denied the motion.

Two months later, the district court held a pre-summary-judgment conference, before which it ordered Plaintiff to file a letter indicating whether and why he would oppose summary judgment. After declining on several occasions to concede summary judgment or identify any evidence supporting his claims, Plaintiff finally consented to summary judgment for Defendants, which the district court granted.

The district court later granted Defendant’s motion for fees, finding that the case was exceptional. Because Plaintiffs’ counsel had prepared, signed and filed all the relevant submissions, the district court held counsel jointly and severally liable for the award.

Plaintiff appealed, and Defendant moved for appellate fees and double costs.

The Federal Circuit affirmed the fee award, finding no abuse of discretion, and further found that the appeal was frivolous as argued in part because Plaintiff’s counsel distorted the factual and legal bases for the fees award and “leveraged inapposite legal doctrines to make arguments that can only be described as baffling.” The Court concluded that “[w]hen an appeal is frivolous as argued, we may hold a party’s counsel jointly and severally liable.”




Set Phase to Subject Matter Ineligible: More Accurate Haplotype Phase Method Still Abstract

In an appeal from a final rejection of a pending application, the US Court of Appeals for the Federal Circuit held that claims directed to methods for determining “haplotype phase” were correctly rejected as subject matter ineligible. In Re: Board of Trustees of The Leland Stanford Junior University, Case No. 20-1288 (Fed. Cir. Mar. 11, 2021) (Reyna, J.)

This case was consolidated for the purposes of oral argument with In Re: The Board of Trustees of the Leland Stanford Junior University, Case No. 20-1012 (Stanford Part I). Both cases relate to methods of determining “haplotype phase” (a scientific way of describing the methodology for determining from which parent a particular allele (or gene) is inherited).

Stanford Part I related to a claimed method that utilized “linkage disequilibrium data” and “transition probability data” to increase the number of haplotype predictions made. In Stanford Part I, the Federal Circuit held that this claimed method for increasing the number of haplotype predictions made did nothing more than recite a haplotype phase algorithm and instruct users to “apply it,” similar to the claimed subject matter prohibited by Alice.

The claims at issue in this appeal were directed toward a method of improving the accuracy and efficiency of haplotype predictions, which involves “building a data structure describing a Hidden Markov Model,” and then “repeatedly randomly modifying at least one of the imputed initial haplotype phases” to automatically recompute the parameters of the Hidden Markov Model until the parameters indicate that the most likely haplotype phase is found. In addition to these mathematical steps, the claims recited the steps of receiving genotype data, imputing an initial haplotype phase, extracting the final predicted haplotype phase from the data structure and storing it in computer memory.

The examiner and then the Patent Trial & Appeal Board found that this claimed improved process was directed toward patent-eligible subject matter—a mathematical algorithm. Stanford appealed.

Applying the two-step Alice framework, the Federal Circuit first determined whether the claims were directed to an abstract mathematical calculation and thus directed to patent-ineligible subject matter under 35 USC § 101.

Stanford argued that the claimed process was not directed to a patent-ineligible abstract idea, but instead represented an improvement on a technological process—namely, an improvement in the efficiency of haplotype phase predictions that this mathematical algorithm could yield. The Federal Circuit found that Stanford had forfeited this argument by failing to raise it before the Board.

Stanford separately argued that another claimed advantage was that the claim steps resulted in more accurate haplotype predictions, rendering the claimed invention a practical application rather than an abstract idea. The Federal Circuit disagreed, explaining that the improvement in computational accuracy alleged here did not qualify as an improvement to a technological process, but rather was an enhancement to the abstract mathematical calculation of haplotype phase itself.

Next, under step two of the Alice inquiry, the Federal Circuit found that the claims did not include additional limitations that, when taken as a whole, provided an [...]

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The Road Less Traveled: IPR Denial Decisions Appealable via Mandamus

The US Court of Appeals for the Federal Circuit concluded that while it did not have jurisdiction to consider the direct appeal of a Patent Trial & Appeal Board decision denying institution, it could review the decision under its mandamus jurisdiction. Mylan Laboratories Ltd. v. Janssen Pharmaceutica, N.V., Case No. 20-1071 (Fed. Cir. Mar. 12, 2021) (Moore, J.)

In 2019, Janssen sued Mylan in district court for infringement of one patent. Less than six months later, Mylan petitioned the Board for inter partes review (IPR) of that patent. Opposing institution, Janssen argued that the IPR would be an inefficient use of Board resources because of two co-pending district court actions (one involving Mylan and one involving a third party) that implicated the same validity issues as the IPR petition. Janssen also argued that those district court actions would likely reach final judgment before any IPR final decision. The Board agreed with Janssen. Mylan appealed and also requested mandamus relief.

On appeal, Mylan argued that the Board’s determination to deny institution based on the timing of a separate district court action that did not involve Mylan undermined constitutional and due process rights.

Before addressing the merits of the appeal, the Federal Circuit addressed two jurisdictional questions: whether it had jurisdiction over Mylan’s direct appeal and whether it had jurisdiction over the mandamus request. As to the first question, the Court relied on its decision in St Jude Medical v. Volcano, finding that decisions denying institution are not subject to review on direct appeal. As to the second question, the Court concluded that judicial review was available in extraordinary circumstances, and particularly in situations involving denial of petitions. The Court stated that “[t]o protect our future jurisdiction, we have jurisdiction to review any petition for a writ of mandamus denying institution of an IPR.”

Having found that it had jurisdiction, the Federal Circuit turned to the merits. The Court explained that when a mandamus petition challenges a decision denying institution, it will be especially difficult to satisfy the requirements for mandamus because the relevant statute bestows the Board with significant discretion. The Court concluded that there is no reviewability of a Board denial of institution except for colorable constitutional claims. The Court found that Mylan lacked a clear and indisputable right to relief and also failed to state a colorable claim for constitutional relief since it did not identify a deprivation of “life, liberty or property” necessary to a procedural due process claim. The Court also found that there were no substantive due process claims since there is no fundamental right to have the Board consider whether to institute on an IPR petition based only upon co-pending litigation to which petitioner is a party. The Court thus denied Mylan’s petition.




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