In Wi-Fi One, LLC v. Broadcom Corp., [2015-1944, -1945, -1946] (January 4, 2017), the Federal Circuit granted Wi-Fi One’s petition for rehearing en banc to address the question:
Should this court overrule Achates Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015) and hold that judicial review is available for a patent owner to challenge the PTO’s determination that the petitioner satisfied the timeliness requirement of 35 U.S.C. §315(b) governing the filing of petitions for inter partes review?
The PTAB’s decisions applying the one year bar under §315(b) have been inconsistent, and Achates effectively insulates the misapplication of the bar from review, leaving patent owners without remedy should the Board institute a proceeding that is in fact barred.