BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc., fka MonoSol RX, LLC

The Federal Circuit vacated three inadequate final written decisions and remanded the inter partes reviews (IPRs) with the order to implement this Court’s decision in SAS. On its own initiative on remand, the Patent Office instead terminated the instituted IPRs. The Federal Circuit dismissed the appeal of the termination decisions, holding it lacked authority to review those decisions. Does the Judiciary have authority to review a Patent Office decision refusing to implement its mandate and this Court’s precedent?

The Patent Office terminated three IPRs that had already been instituted. The Patent Office has no discretionary authority to terminate an instituted IPR—as long as the petitioner remains involved. But the Patent Office mislabeled the termination decisions as nonappealable decisions whether to institute the IPRs. May a petitioner appeal a decision terminating an instituted IPR, despite the decision being mislabeled as a nonappealable decision?