CyWee’s Arthrex-like arguments rejected; Board extension of time to produce FWDs and USPTO Director denial of rehearing affirmed

Cywee Group Ltd. v. Google LLC et al. (USPTO as Intervenor)

Docket No. 2020-1565, -1567 (IPR2018-01257-8 (


February 8, 2023

Brief Summary:   CyWee’s Arthrex-like arguments rejected; Board extension of time to produce FWDs and USPTO Director denial of rehearing affirmed.

Summary:  CyWee appealed to the denial of its request the USPTO Director to rehear two IPR proceedings filed by Google (joined by several other parties including Samsung, LG, Huawei) that resulted in two final written decisions (FWDs) finding all of its challenged claims unpatentable.  Each of the joined parties was joined after the IPRs were instituted, and the Board therefore extended its deadline for the final written decisions by one month.  Cywee appealed the decisions in March 2020, challenging the Board’s FWD decisions and “the appointment of Board administrative patent judges (‘APJs’) as unconstitutional in view of the Appointments Clause” as foreclosed by Arthrex (FC 2019).  In March 2021, the FC panel affirmed the Board’s decision and rejected the Appointment’s Clause argument.  CyWee petitioned to rehearing en banc which was denied on June 10, 2021.  SCOTUS’s Arthrex decision then issued holding that the “APJs’ power to render final patentability decisions unreviewable by an accountable principal officer gave rise to an Appointments Clause violation” which was remedied by “(1) vitiating anything in 35 U.S.C. § 6(c) that prevented the Director from reviewing final Board decisions in the IPR context and (2) “remand[ing] to the Acting Director for him to decide whether to rehear” the case.”  CyWee then moved the FC to “recall its mandate and remand to the PTO for proceedings consistent with Arthrex”, which it did, requiring “CyWee to inform this court within 14 days of any decision denying rehearing.”  CyWee did so, and the USPTO Director denied rehearing, which CyWee then appealed to the FC.  This case was then stayed until the FC decided Arthrex II in 2022 that “reject[ed] challenges concerning the Commissioner’s authority to perform the review Arthrex contemplates”.  The stay in this case was then lifted and CyWee filed a “a supplemental brief identifying the arguments from its opening brief that it believed were not foreclosed or otherwise resolved by Arthrex II.”  The FC panel wrote that “CyWee seems to acknowledge that Arthrex II compels rejecting its challenges to the Commissioner’s authority to perform the review Arthrex contemplates” (and In re Palo Alto, FC 2022), and the FC panel rejected those challenged.  CyWee also argued the Board’s FWDs “were untimely” (e.g., “the three-month deadline in § 314(b) (for institution) and the one-year deadline in § 316(a)(11) (for the final written decision) do not apply to any Director review decisions”) but the FC panel found those challenges “meritless”, citing Ethicon (FC 2016) and In re Palo Alto (FC 2022).  The FC panel also found CyWee’s argument that the Board “lacked authority to extend the one-year deadline for final written decisions in the case of joinder” but the FC panel found CyWee to be “plainly mistaken” (In re Palo Alto, FC 2022; Piano Factory, FC 2021).  The USPTO decisions were therefore affirmed.

This entry was posted in Appeal, Inter Parties Review (IPR), IPR. Bookmark the permalink.

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