Whether 35 U.S.C. § 314(d) precludes review of PTO rules setting standards governing IPR institution decisions

QUESTION PRESENTED Congress established inter partes review (IPR) to provide an efficient administrative alternative to litigation for challenging the validity of dubious patents. The Director of the U.S. Patent and Trademark Office (PTO) has authority to decide whether to institute an IPR to review a challenged patent and has delegated that authority to the Patent Trial and Appeal Board. Section 314(d) of Title 35 provides that “(t]he determination by the Director whether to institute an inter partes review ... Shall be final and nonappealable.” Petitioners brought claims under the Administrative Procedure Act challenging a PTO rule that has curtailed access to IPR by setting restrictive, non-statutory standards the Board must apply in deciding whether to institute an IPR. Petitioners do not challenge any particular “determination ... whether to institute an [IPR],” but rather seek prospective relief setting aside the challenged rule as contrary to law and arbitrary and capricious. The Federal Circuit held that § 314(d) precludes review of those claims. The question presented is whether 35 U.S.C. § 314(d), which bars judicial review of “[t]he determination ... whether to institute an inter partes review,” applies even when no institution decision is challenged to preclude review of PTO rules setting standards governing institution decisions. @