The Federal Circuit held that it could not hear the patentees’ challenge to the PTO’s refusal to terminate pending reexaminations because the PTO’s refusal is not a “final agency action” under Section 704 of the Administrative Procedure Act.  After settling a prior litigation over four patents, the parties entered into a consent judgment in which they agreed that the patents were valid.  At the time, there were four inter partes reexaminations pending that had not yet been granted by the PTO.  The court held that there is no final agency action within the meaning of Section 704 until the PTO completes the reexamination and the patentee loses some patent rights as a result of the reexamination. 

Automated Merchandising Systems, Inc. v. Lee, Case No. 2014-1728 (April 10, 2015); Opinion by: Taranto, joined by Prost and Fogel (Judge Jeremy Fogel of the N.D. Cal. sitting by designation); Appealed From: District Court for the Eastern District of Virginia, Trenga, J. Read the full opinion here.

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