Judges Recommend En Banc Reconsideration of Federal Circuit Holding in Achates, <i>PTAB Litigation Blog</i>

Judges Recommend En Banc Reconsideration of Federal Circuit Holding in Achates, PTAB Litigation Blog

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In a November 17, 2016 non-precedential decision, a Federal Circuit panel again considered whether its holding in Achates Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015) remains binding in view of the Supreme Court’s ruling in Cuozzo Speed Technologies LLC v. Lee, 136 S.Ct. 2131 (2016).  See, Click-to-Call Technologies, LP v. Oracle Corporation, et al., No. 2015-1242 (Fed. Cir. Nov. 17, 2016).  The Achates decision holds that a party cannot challenge the Board’s decision to institute an IPR proceeding under §315(b) because of the bar on judicial review of institution decisions in §314(d).  The Click-to-Call court agreed that the Federal Circuit remains bound by its holding in Achates.  But Judge’s O’Malley and Taranto both filed concurring opinions urging the Federal Circuit to reconsider the holding of Achates en banc.

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