Did the Federal Circuit err in concluding that it had jurisdiction to review the Board's decision to institute inter partes review

QUESTIONS PRESENTED The 2011 America Invents Act provides for inter partes review (IPR), an administrative procedure designed to streamline patentability challenges. Congress elected to make the decision whether to institute IPR unreviewable: under 35 U.S.C. § 314(d), “(t]he determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.” As part of that institution decision, the Patent Trial and Appeal Board determines whether a petition has been filed in accordance with the time bar in 35 U.S.C. § 315(b), which bars a petitioner from seeking IPR “more than 1 year after” being served with a complaint. In this case, the Federal Circuit asserted jurisdiction to review the Board’s institution decision and then ultimately reversed that decision upon reaching a different conclusion than the Board about whether the petition was timely filed. In particular, the Federal Circuit disagreed with the Board’s interpretation of whether a complaint that was dismissed without prejudice triggered the time bar. The questions presented are: 1. Did the Federal Circuit err in concluding that it had jurisdiction to review the Board’s decision to institute inter partes review of Bennett’s ’029 patent over Bennett’s objection that it was time-barred? 2. Did the Federal Circuit err when it rejected the longstanding principle that a dismissal without prejudice leaves the parties as if a suit had never been brought, splitting the circuits?