Whether Section 554(d) prohibits the same Patent Trial and Appeal Board panel from instituting and deciding inter partes review because institution is a prosecuting function within the meaning of the Administrative Procedure Act

QUESTION PRESENTED The same panel of the Patent Trial and Appeal Board that makes the decision to institute inter partes review of a patent’s validity goes on to conduct the inter partes review and decide the case on the merits. The Administrative Procedure Act’s provision prohibits agency officials engaged in “investigative or prosecuting functions for an agency” from participating in an agency decision in the same case. 5 U.S.C. § 554(d). The question presented is: Whether Section 554(d) prohibits the same Patent Trial and Appeal Board panel from instituting and deciding inter partes review, because institution is a prosecuting function within the meaning of the Administrative Procedure Act. ey)