The US Court of Appeals for the Federal Circuit sitting en banc recently issued a majority opinion holding that a determination made by the Patent and Trademark Office concerning whether a petition for an inter partes review is time barred is subject to judicial review. Specifically, the majority held that the limit on judicial review pertaining to institution decisions does not apply to time bar determinations under 35 USC Section 315(b).
A divided en banc Federal Circuit recently issued several opinions addressing the burden of proof concerning a motion to amend claims in inter partes review proceedings. While none of the opinions garnered a full majority, the leading opinion placed the burden of persuasion with respect to the patentability of amended claims on the petitioner.
The US Supreme Court recently held that 35 USC Section 314(d) bars challenge to the US Patent and Trademark Office's (USPTO) decision to institute aninter partes review, and that the USPTO's application of the 'broadest reasonable construction' standard to interpret patent claims is a reasonable exercise of the rulemaking authority granted by Congress.