Section 314(d)'s Bar Holds: Federal Circuit Rejects Constitutional and APA Challenges to IPR Institution Denials

"These three focused on the USPTO's February 2025 rescission of Sotera stipulation guidance offered a safe harbor against discretionary denial for petitioners involved in parallel district court litigation over the patent. The three-judge panel was almost the same of Judges Dyk, Linn (opinion author), and Cunningham (with Stoll replacing Cunningham on the Google decision) rejected constitutional and Administrative Procedure Act (APA) challenges to the policy change, holding that 35 U.S.C. § 314(d) renders institution decisions "final and nonappealable" and that mandamus is ordinarily unavailable to review such discretionary determinations."

"The petitioners in all three cases argued that Acting Director Stewart violated due process and the APA by rescinding the Vidal Memorandum and applying that rescission to pending IPR petitions. Motorola Solutions faced the most dramatic procedural harm: the PTAB had initially instituted eight IPRs based on Motorola's Sotera stipulations, but the Acting Director later vacated those institution decisions after rescinding the guidance. Google and Samsung jointly challenged denials of IPR petitions despite Samsung's stipulation, while SAP similarly contested discretionary denials after it had stipulated not to pursue district court invalidity grounds."

"One response has been a series of mandamus petitions to the Federal Circuit. The first three of those have now been denied by a three judge panel. Each petitioner contended that the policy reversal after they had filed their petitions violated constitutional protections and administrative law principles. The Federal Circuit rejected these arguments across the board, finding no colorable constitutional claim and holding that most APA challenges to institution decisions fall outside the narrow exceptions to § 314("

In 2025, the USPTO rescinded Sotera stipulation guidance, producing a sharp increase in IPR institution denials. Petitioners filed mandamus petitions challenging the rescission and its retroactive application to pending IPRs. A three-judge Federal Circuit panel (Judges Dyk, Linn, and Cunningham, with Stoll replacing Cunningham in one decision) denied the first three petitions. The panel held that 35 U.S.C. § 314(d) renders institution decisions final and generally nonappealable, making mandamus ordinarily unavailable. Petitioners argued due process and APA violations, with Motorola citing vacated instituted IPRs; the court found no colorable constitutional claim and limited APA review.

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