In three recent decisions, the CAFC addressed whether the PTAB’s decision to institute an IPR is appealable.

For an IPR petition to be instituted, it must show a reasonable likelihood that the petitioner would prevail with respect to at least one of the claims challenged in the petition. 35 U.S.C. § 314. According to the statute, the PTAB’s decision whether to institute is “final and nonappealable.”

In St. Jude Medical, Cardiology Division, Inc. v. Volcano Corp., 749 F.3d 1373 (Fed. Cir. 2014), the petitioner filed an IPR petition over two years, after being served with an infringement counterclaim in … Continue Reading