1. “Did the USPTO violate due process by retroactively applying new institution rules to IPR petitions, after they had been paid for and filed, in a manner that destroyed their viability?” 2. “Did the USPTO exceed its statutory authority by creating a ‘settled expectations’ rule untethered to the AIA?” 3. “Did the USPTO violate the APA and AIA by creating a ‘settled expectations’ rule that was incoherent, arbitrary, and capricious?” 4. “Did the USPTO violate the APA and AIA by skipping notice-and-comment procedures for its ‘settled expectations’ rule?”
1. “We . . . cannot say KCT has shown that the PTO violated the Due Process Clause by accepting payment of the filing fees and then not limiting its review to the interim guidance in place when KCT’s petitions were filed in January 2025.”
2-3. “KCT contends that the use of settled expectations as a factor in IPR institution exceeds the PTO’s statutory authority and violates procedural protections guaranteed by the Administrative Procedure Act. This court recently considered and rejected similar challenges . . . and we see no basis for reaching a different outcome here. At a minimum, KCT has failed to adequately demonstrate that its statutory challenge is reviewable.”
4. “Nor has KCT demonstrated, for purposes of its notice-and-comment challenge, that a district court suit is not ‘an available avenue to raise this same challenge.’”
