“Whether 35 U.S.C. § 314(d) bars Appellants’ challenge to the NHK-Fintiv Rule, where Appellants’ suit does not seek to appeal any institution decision but instead seeks to set the Rule aside under the APA on the grounds that the Rule exceeds the Director’s authority, is arbitrary and capricious, and was unlawfully adopted without notice-and-comment rulemaking.”
“[W]e affirm the district court’s judgment dismissing plaintiffs’ challenges to the Director’s instructions as substantively contrary to statute and as arbitrary and capricious. We reverse the district court’s dismissal for unreviewability of plaintiffs’ challenge to the Director’s instructions as having improperly been issued without notice-and-comment rulemaking, a challenge that we also conclude at least Apple has standing to press. We remand for consideration of this one challenge on the merits.”
