Wi-Fi One has submitted its supplemental briefing in Wi-Fi One, LLC v. Broadcom Corp., Nos. 2015-1944, -1945, -1946, urging the en banc court to overturn its decision in Achates Reference Publishing Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015), holding that that the PTAB’s decision regarding the timeliness of an IPR petition under 35 U.S.C. § 315(b) is unreviewable. In Achates, the Federal Circuit interpreted § 314(d), which makes the decision whether to institute “final and nonappealable,” as precluding this review.

Wi-Fi One claims that past cases require that “courts . . . narrowly construe review‑limiting statutes to preserve review of agency action[s] [that are] outside of the agency’s statutory jurisdiction, that violate a statutory directive, or [that] are otherwise contrary to law.” Brief at 19. “In a rare case where the Supreme Court reads a statute to preclude all judicial review of agency action, there must be clear and unmistakable evidence of Congressional intent.” Id. at 20. Even in these “rare cases,” Wi-Fi One argues that courts still may hear appeals of constitutional law issues. Id. at 20-21. According to Wi-Fi One, “the USPTO will . . . be unable to show that Congress intended to preclude appellate review” of the timeliness requirement of § 315(b). Id. at 51.

Turning to the merits, Wi-Fi One argues that Achates was wrongly decided because it “never mention[ed] the strong presumption of judicial review and attach[ed] no weight at all to the presumption. Id. at 35. Instead, “Achates read[] § 314(d) to preclude review of all issues decided at the institution stage . . . unless the issue is jurisdictional in nature.” Id. at 37. Through this interpretation, it argued, Achates “construct[ed] an erroneous analytical framework that focused solely on whether the § 315(b) time bar is jurisdictional,” id. at 36, when there is no “distinction between jurisdictional and non-jurisdictional agency statutes,” id.at 37.

Wi-Fi One also argued that the Supreme Court’s later decision in Cuozzo Speed Techs., LLC v. Lee, 136 S.Ct. 2131 (2016), “demonstrate[d] that Achates turned the presumption of review on its head when [it] presumed § 314(d) bars appeal of practically any issue decided at institution, and found a narrow exception only for issues implicating the jurisdiction of the PTAB.” Id. at 38. Instead, Wi-Fi One argues that Cuozzo requires “starting with the presumption of review and assessing evidence of Congressional intent against the presumption.” Id.

In light of Cuozzo, Wi-Fi One would interpret § 314(d) to apply “to the Director’s determination under § 314(a) that the information presented in the petition shows that there is a reasonable likelihood that the petition would prevail.” Id. at 45. According to Wi-Fi One, § 315(b)’s time bar “is in no way closely related to the Director’s decision under § 314(a).” Id. at 46. Additionally, “[w]hen the PTAB’s final decision revisits a sub-issue related to institution, or when the sub-issue is intrinsically bound up with the final decision, the resolution of that sub-issue is no longer the ‘Director’s decision’ under § 314(a) at all, but instead becomes the PTAB’s decision and, by the statute’s plain text, outside the scope of § 314(d)’s preclusion of appeal.” Id. at 42.

This is an important case to watch because it may further clarify the scope of the Federal Circuit’s appellate review jurisdiction. While the case addresses § 315(b) in particular, Wi-Fi One believes it will “have implications for reviewability of other issues” as well. Id. at 55. We will continue to monitor the case and provide updates here on the AIA Blog as it progresses.