Koninklijke Philips N.v. v. Andrei Iancu, Under Secretary of Commmerce for Intellectual Property

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

KONINKLIJKE PHILIPS N.V.,
Appellant

v.

ANDREI IANCU, UNDER SECRETARY OF
COMMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR OF THE UNITED STATES
PATENT AND TRADEMARK OFFICE,
Intervenor
______________________

2019-2040
______________________

Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2018-
00023.
______________________

Decided: November 17, 2020
______________________

J
USTIN J. OLIVER, Venable LLP, Washington, DC, ar-
gued for appellant. Also represented by D
ANIEL S. GLUECK.

MOLLY R. SILFEN, Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, argued for
intervenor. Also represented by T
HOMAS W. KRAUSE,
Case: 19-2040 Document: 76 Page: 1 Filed: 11/17/2020

KONINKLIJKE PHILIPS N.V. v. IANCU
2
FARHEENA YASMEEN RASHEED, MAUREEN DONOVAN
QUELER.
______________________

Before PROST, Chief Judge, DYK and WALLACH, Circuit
Judges.
PER CURIAM.
The Patent Trial and Appeal Board (“Board”) insti-
tuted inter partes review of claims 1–12 of U.S. Patent No.
6,690,387, owned by Koninklijke Philips N.V. (“Philips”).
The Board concluded that the challenged claims were un-
patentable. Philips appealed.
Philips argues that, in deciding to institute inter partes
review, the Board “incorrectly applied” its own precedent
relating to fairness in rendering institution decisions, and
that such “[m]isapplication of the [United States Patent
and Trademark Office’s] own fairness standard violates the
Due Process Clause and [amounted to arbitrary and capri-
cious agency action under the] Administrative Procedure[]
Act” (“APA”). Reply Br. 1. Specifically, Philips argues that
the Board misapplied General Plastic Industrial Co. v.
Canon Kabushiki Kaisha, No. IPR2016-01357, 2017 WL
3917706 (P.T.A.B. Sept. 6, 2017), as confirmed by Valve
Corp. v. Electronic Scripting Products, Inc., No. IPR2019-
00062, 2019 WL 1490575 (P.T.A.B. Apr. 2, 2019). See, e.g.,
Reply Br. 4. Philips also disputes the merits of the Board’s
final written decision.
We lack jurisdiction to entertain Philips’s APA chal-
lenge, which amounts to an appeal of the Board’s decision
“whether to institute an inter partes review.” 35 U.S.C.
§314(d); see Thryv, Inc. v. Click-to-Call Techs., LP, 140 S.
Ct. 1367, 1370–74 (2020); Cuozzo Speed Techs., LLC v. Lee,
136 S. Ct. 2131, 2136, 2139–42 (2016). We also conclude
that Philips does not advance a colorable due process chal-
lenge to the institution decision.
Case: 19-2040 Document: 76 Page: 2 Filed: 11/17/2020

KONINKLIJKE PHILIPS N.V. v. IANCU
3
As to Philips’s challenge to the Board’s invalidity de-
termination, we have jurisdiction under 28 U.S.C.
§ 1295(a)(4)(A). We affirm the Board’s decision as sup-
ported by substantial evidence and otherwise in accordance
with the law. Accordingly, we affirm-in-part and dismiss-
in-part.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
Case: 19-2040 Document: 76 Page: 3 Filed: 11/17/2020