Decision to Deny Institution not Reviewable Despite Prior PTAB Trial, PTAB Litigation Blog

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In a split decision, the Federal Circuit dismissed three consolidated appeals holding that the PTAB’s decisions to deny institution were not appealable even though the PTAB previously had instituted the IPRs and proceeded through trial.  BioDelivery Sciences Int’l, Inc. v. Aquestive Therapeutics, Inc., 2019-1643, 2019-1644, 2019-1645 (Fed. Cir. Aug. 29, 2019).  Although the Supreme Court’s Cuozzo decision held that the PTAB’s decision whether to institute an IPR is not appealable, this case presented the unique situation of the PTAB instituting IPRs then, on remand, changing course and deciding to deny institution. 

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