Last month, in Federal Express Corp. v. Qualcomm Inc., Appeal No. 2024‑1236 (Fed. Cir. Apr. 29, 2026), the Federal Circuit again addressed the reach of the statutory bar on its review of Patent Trial and Appeal Board decisions to institute inter partes reviews. The case arose from Qualcomm’s IPR petition challenging a FedEx patent that FedEx was already asserting against a third party in district court. Qualcomm was not involved in that court case, and its petition did not name the third party as a real party in interest. That omission set the stage for the dispute on appeal. Slip op. at 7–13.
FedEx argued that the Board violated 35 USC § 312(a)(2) by instituting and completing the IPR without ever deciding whether the petition properly identified all real parties in interest. FedEx framed the issue as one of statutory authority rather than a challenge under 35 USC § 314(d), which bars appellate review of institution decisions. In its view, the Board may consider a petition “only if,” as § 312(a)(2) states, the petition “identifies all real parties in interest.” According to FedEx, ignoring that prerequisite was not merely an error, but rather an abdication of a mandatory duty.
The Federal Circuit disagreed. It concluded that FedEx’s real-party-in-interest challenge was unreviewable under § 314(d). The court emphasized that § 312(a)(2) is “closely tied” to institution and therefore squarely within the Board’s institution discretion that Congress insulated from appellate review. That conclusion controlled the outcome, regardless of how FedEx styled its argument.
The court relied on Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. 261, 274–76 (2016). There, the Supreme Court determined that § 314(d) bars review of challenges that are linked to the institution decision. This includes disputes over whether a petition satisfied statutory prerequisites for institution, such as whether the petition identifies challenged claims “with particularity”—a requirement under § 312(a)(3). Id. at 270–72. The Federal Circuit treated § 312(a)(2) as fitting comfortably within that framework. Slip Op. at 8–9. In other words, appellate review is barred if the alleged violation goes to whether the IPR should have been instituted in the first place.
The court also relied on Thryv, Inc. v. Click-to-Call Technologies, LP, 590 U.S. 45, 52–54 (2020). There, the Supreme Court explained that the 35 USC § 315(b) time-bar determinations are unreviewable because they are conditions on institution itself. The Federal Circuit viewed § 312(a)(2) the same way. Both provisions operate as gatekeeping requirements. And both are therefore swept within § 314(d)’s institution activities shielded from appellate review. Slip Op. at 9–10.
Finally, the court relied on its own recent precedent in Ethanol Boosting Systems LLC v. Ford Motor Co., 162 F.4th 1151, 1157–58 (Fed. Cir. 2025), discussed here. Ethanol teaches that parties should focus on the role the allegedly violated statute plays in inter partes reviews. If the statute “has force only in the institution context,” then a challenge to its application “necessarily target[s] the institution decision.” Slip Op. at 12 (quoting Ethanol). Through that lens, the court concluded that FedEx’s argument was barred, even when framed as though the Board was “act[ing] outside its statutory limits.” Cf. Cuozzo Speed, 579 U.S. at 275.
The court distinguished SAS Institute, Inc. v. Iancu, 584 U.S. 357 (2018). FedEx argued that it was not challenging the Board’s decision to institute, but rather its failure to perform a required task after institution—specifically, making a real-party-in-interest determination when the issue was disputed. The court rejected that analogy. SAS concerned how an instituted review must proceed, such as whether the Board must review all challenged claims during the proceeding. In contrast, FedEx’s challenge ultimately sought to undo institution altogether. Slip Op. at 9, 11–12.
During the appeal, the Patent Office notified the court that the Director had since announced that real-party-in-interest disputes must be resolved before considering a petition. Slip Op. at 7 n.5. But that policy shift neither mattered in this case, nor did it open the door for appellate review; section 314(d) and the decisions mentioned above still controlled.
Decisions like FedEx and Ethanol implicate the practical value of appealing errors the Board makes in instituting review. In Cuozzo Speed, the Supreme Court said that Board “shenanigans” might warrant appellate review, but it identified only the narrowest of examples. In the decade since, nothing has qualified. If the Board’s allegedly erroneous determination of—and even refusal to determine—who stands behind an IPR petition does not cross that line, it is difficult to imagine what would. At the same time, institution‑level errors practically matter least after the Board ultimately decides to cancel the patent’s claims. Once the Board has made that final decision on substantive unpatentability grounds, the patent has already endured and failed an objective merits review. Even if the patent owner somehow later succeeds in appealing the Board’s procedural error, the shadow cast by the Board’s merits determination remains. In that sense, section 314(d) not only insulates institution decisions from review, it also diminishes the practical payoff of challenging them at all.