Last week, the Federal Circuit denied the mandamus, finding the matter barred from appeal in a straightforward opinion.
In the brief opinion (here), the Court explained that while some jurisdictional/constitutional issues may avoid the appeal bar, this dispute was too closely tied to the AIA statutes to qualify:
" [W]hile the [Supreme] Court left open the possibility that § 314(d) may not bar appeals that implicate constitutional questions or concerns that the agency acted outside its statutory limits, it made clear that § 314(d) bars review of matters “closely tied to the application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review.” Cuozzo, 136 S. Ct. at 2141.
The Court took no position on the merits.
As such, it leaves the pending APA action to sort out this issue -now making its way through initial stages. Given the agency’s rush to issue rules on 314(a), there appears to be some concern that the lack of notice-and-comment rulemaking is an APA vulnerability to these practices.