By Garrard Beeney and Stephen Elliott ( January 10, 2018, 4:47 PM EST) -- In Monday's en banc decision in Wi-Fi One LLC v. Broadcomm Corporation,[1] the Federal Circuit held that a Patent Trial and Appeals Board decision to institute inter partes review over the patentee's objection that the petition was untimely is reviewable on appeal. Wi-Fi One continues a string of decisions by the appellate court — including, most recently, in Aqua Products Inc. v. Matal[2] — to rein in patent invalidity determinations by the PTAB, once criticized by former Federal Circuit Chief Judge Randall Radar as a patent "death squad" in light of its very high rates of invalidation.[3] As noted below, the implications of Wi-Fi One include appealability of a broader class of PTAB decisions and further complexity and cost (and perhaps greater balance) in the IPR process....
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