By statute, an
IPR cannot be instituted if the petitioner, real party in interest, or its
“privy” was sued for infringing the patent more than one year before the
petition for the IPR. 35 U.S.C. § 315(b). As we previously reported, in Wi-Fi
One, LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018), the
Federal Circuit en banc held that it had jurisdiction to review the PTAB’s
time-bar decisions. Last Friday, we got the first inkling of what such review
will look like, as the Wi-Fi panel
affirmed the PTAB’s decision on remand. If Wi-Fi One is any
indicator, the Federal Circuit’s review will be highly deferential.
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