The Federal Circuit is set to reconsider one of its more controversial decisions en banc, when it decides whether the Achates Reference Publishing, Inc. v. Apple Inc. decision was correctly decided.  Specifically, in Wi-Fi One, LLC v. Broadcom Corp., the Court requested supplemental briefing on the following issue:

“Should this court overrule Achates Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015) and hold that judicial review is available for a patent owner to challenge the PTO’s determination that the petitioner satisfied the timeliness requirement of 35 U.S.C. § 315(b) governing the filing of petitions for Inter Partes Review?”

There have been several justices who have suggested that the Achates decision should be revisited by the entire bench, especially in view of the Supreme Court’s Cuozzo decision.  We’ll have an answer soon on whether the broad discretion that has been afforded the PTAB regarding issues related to a decision to institute will continue, or whether the Federal Circuit will allow itself more leeway to consider foundational IPR issues.