SAP petitioned the U.S. Court of Appeals for the Federal Circuit to compel the USPTO to apply its guidance on discretionary denials to active IPR petitions. Several amici have filed briefs supporting this standpoint, while others, including retired judges and academic scholars, argue against SAP's request, asserting that IPR petitioners lack property rights necessary for due process protections. They contend that SAP's reasoning contradicts its previous arguments in the Oil States case regarding the nature of discretionary denials in inter partes review proceedings.
"Applying SAP's own reasoning from its Oil States brief, SAP was on notice here since the creation of IPR proceedings in 2011 that discretionary denials can and will occur."
"Three retired federal judges, the former vice chair of the International Trade Commission, and six academic scholars filed a brief on Friday, July 18, opposing SAP's request for mandamus."
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