“The same panel of the Patent Trial and Appeal Board that makes the decision to institute inter partes review of a patent’s validity goes on to conduct the inter partes review and decide the case on the merits. The Administrative Procedure Act’s separation-of-functions provision prohibits agency officials engaged in ‘investigative or prosecuting functions for an agency’ from participating in an agency decision in the same case. 5 U.S.C. § 554(d).
“The question presented is:”
“Whether Section 554(d) prohibits the same Patent Trial and Appeal Board panel from instituting and deciding inter partes review, because institution is a prosecuting function within the meaning of the Administrative Procedure Act.”
