Before Taranto, Chen and Cunningham. Appeal from the United States District Court for the Eastern District of Virginia.

Summary: The Administrative Procedure Act (APA) provides judicial review of a decision of the Patent Office setting aside an ex parte review based on estoppel. has requested inter partes review (IPR) of three patents owned by Vivint. The Patent Trial and Appeal Board (PTAB) upheld the patentability of the claims at issue, and the Federal Circuit upheld it. Subsequently, filed requests for ex parte reexamination of the same patents, based on “different grounds from those it had presented in the IPRs”. The Director of the Patent and Trademark Office (PTO) canceled the ex parte review procedure on the basis of IPR estoppel. filed for review of the Director’s vacancy decision in the District Court under the APA. The district court dismissed’s complaint, finding that the statutory regime of ex parte review precluded judicial review of the director’s decision.

The Federal Circuit concluded that “the text, statutory scheme and legislative history relating to ex parte review do not demonstrate a discernible enough intention to preclude judicial review” of the Director’s vacancy decision. Thus, the Federal Circuit reversed the dismissal.


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