Appellate Standard of Review

ClockNow that Cuozzo Speed Techs., LLC v. Lee has been submitted to the Supreme Court, the next issue that may well make its way to the Court is the propriety of the Federal Circuit’s standard of reviewing the PTAB’s AIA trial decisions. Currently, the Federal Circuit reviews these decisions for substantial evidence. At least four Federal Circuit Judges do not, however, think that the court’s application of that review standard is consistent with the AIA and have concluded that the standard makes too little sense in the context of an appeal from the PTAB’s IPR decision. But because the court is bound by Supreme Court precedent to apply that standard of review, the Federal Circuit issued an order denying a petition Merck & Cie recently filed asking the full Federal Circuit to rehear a late-2015 decision issued by a divided three-judge panel in Merck & Cie v. Gnosis S.p.A., 808 F.3d 829 (Fed. Cir. 2015) (discussed here and here), rehearing en banc denied (Apr. 26, 2016) (order linked here).
Continue Reading On the Clock: Appellate Standard of Reviewing PTAB’s AIA Trial Decisions