Patent Validity Attack Timeliness Ruling Can be Appealed

PHOTO/Paul J. RICHARDS

A patent owner can appeal a patent office decision that Broadcom Corp. didn’t wait too long to file an administrative patent validity challenge, the full U.S. Court of Appeals for the Federal Circuit ruled today.

The court ruled 9-4 overturning a 2015 decision by a three-judge panel that patent holder Wi-Fi One LLC could not appeal a decision of the Patent and Trademark Office’s Patent Trial and Appeal Board that Wi-Fi One’s patents covering online data transmission were unpatentable, and that challenger Broadcom had met the timeliness requirement for filing its inter partes review patent validity challenge.

The Federal Circuit court majority said the decision overturns a contradictory 2015 decision in Achates Reference Publishing Inc. v. Apple Inc. that PTAB rulings on the the time-bar questions were final and can’t be appealed. Under the America Invents Act of 2011 alleged infringers have one year after litigation in federal court begins to file a challenge at the PTAB.

Broadcom filed an IPR challenge in 2013 of Wi-Fi One’s patents, acquired from Swedish telecommunications and network service company Ericsson Inc. Wi-Fi One argued that Broadcom filed too late following a 2010 patent infringement lawsuit, involving the three patents, even though Broadcom was not a defendant.

Wi-Fi One LLC v. Broadcom Corp, Fed. Cir., No. 15-1944, 1/8/18