PTAB DECISION TO INSTITUTE CBM NOT APPEALABLE

On December 15, 2015, the Federal Circuit held that Section 324(e) bars review of PTAB's decision to institute a Covered Business Method (CBM) review even when PTAB relies on grounds not alleged in the petition.  SightSound Tech., LLC v. Apple Inc., Nos. 15-1159, -1160 (Fed. Cir. Dec. 15, 2015).  Apple filed petitions seeking CBM review of two SightSound patents and the petition was based on anticipation under Section 102.  In granting the petition, the Board determined that the petitioner showed a reasonable likelhood that the challenged claims were anticipated or obvious.  On appeal, SightSound argued that PTAB exceeded its authority by granting a petition on a ground not raised by the petitioner.  In affirming the Board's decision, the Federal Circuit reasoned that Section 324(e) bars review of Board's decision to institute a CBM review and that nothing in the statute limits the Board's authority to base its final decision on grounds not raised in the petition.  Full text of the opinion is available here.