Biodelivery Sciences Int’l. v. Aquestive Therapuetics, Inc. (Fed. Cir. 2020)
The Federal Circuit has denied en banc rehearing in this case that focuses primarily on the ability of the appellate court to keep the PTAB in-line. In this particular case, the PTAB did not follow a prior remand order from the Federal Circuit. In particular, in a prior SAS appeal, the Federal Circuit indicated that the PTAB should hold trial on “each claim challenged.” Instead, the PTAB decided to dismiss the whole case — finding it it be “inefficient and expensive” to include the additional grounds. Judge Newman argues that such disobedience should be treated swiftly. She writes:
I write because of the significance of the balance of agency and judicial authority, and the rules of procedural law in the administrative state.
Instead of complying with the Remand Order, the PTAB withdrew all of its past actions as to these proceedings, although past actions were not the subject of the remand. . . . Nonetheless, my colleagues hold that the PTAB is not required to comply with the court’s Remand Order, and further hold that this non-compliance is not reviewable. This action raises critical issues of agency authority, judicial responsibility, and the constitutional plan.
Judge Newman dissenting from En Banc Denial.
Final and Nonappealable: construed as “may be reconsidered” and not reviewable in “at least some circumstances.”