“Whether Congress violated the nondelegation doctrine, and hence the separation of powers principle of the Constitution, by granting to the Director of the USPTO unbounded discretion to deny institution of inter partes review, even when the petition otherwise meets the requirements for institution.”
“Congress committed institution decisions to the Director’s discretion, even when the statutory pre-conditions are present . . . . It protected the exercise of that discretion from review by making such determinations “final and nonappealable,”
“It is true, as the Supreme Court has explained, Congress provided ‘no mandate to institute’ IPR—instead, the Director’s ‘decision to deny a petition is a matter committed to [his] discretion.’ . . . . But that exercise of discretion does not necessarily involve legislative power. In fact, the Court has explained, to the contrary, that ‘an agency’s refusal to institute proceedings,’ as is the situation here, ‘shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch.’”
“The present situation is materially different [from the precedent Volkswagen relies on] in that it does not involve whether a procedure such as a jury trial should be allowed but rather involves a decision whether to institute proceedings.”
“Thus, Volkswagen has provided no persuasive basis to conclude the Director exercises legislative power here.”
