The court considered the question of whether a third party has the right to challenge, by way of the Administrative Procedure Act (APA), a ruling of the Patent and Trademark Office reviving a patent application that had become abandoned by failure to meet a filing schedule established by the Patent Cooperation Treaty and its implementing statute. The district court dismissed Exela’s petition the PTO to “reconsider and withdraw” its revival of the national stage application and seeking to cancel the issued patent for a tardy filing. The Federal Circuit affirmed the dismissal on the ground that PTO revival rulings are not subject to third party collateral challenge. Judge Dyk’s concurrence addressed his concerns that the court’s decision in Aristocrat Technologies Pty Ltd c. International Game Technology, 543 F.3d 657 (Fed. Cir. 2008) was problematic and should reconsidered en banc. Judge Newman disagreed with Judge Dyk in her concurrence.
Exela Pharma Sciences, LLC v. Lee, Case No. 2013-1206 (March 26, 2015); Opinion by: Per Curiam, concurring opinions filed by Newman and Dyk; Radar did not participate; Appealed From: District Court for the Eastern District of Virginia, O’Grady, J. Read the full opinion here.
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