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The ability to appeal the determination on institution of an IPR is expressly limited by statute. 35 U.S.C. § 314(d) states: “The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.” An identically-phrased limitation is also applicable to PGR institution decisions at 35 U.S.C. § 324(e), and by extension, to CBMR institution decisions. On its face, this part of the post-grant proceedings schema seems clear and simple: PTAB institution decisions are not to be appealable.
Continue Reading Institution Decisions are Nonappealable. Settled? Maybe Not Yet.