Federal Circuit held that the same PTAB panel that makes the decision to institute an IPR petition can make the final determination as well. Ethicon Endo-Surgery, Inc. v. Covidien LP, No. 2014-1771 (Fed. Cir. Jan. 13, 2016). Covidien filed an IPR petition challenging a patent held by Ethicon relating to a surgical device to staple, secure and seal cut tissue. The PTAB granted the petition and on the merits, the same panel found all challenged claims invalid as obvious over the prior art. Ethicon appealed contending that the statutory text (Sections 318 and 316(b)) and structure require that the same panel not grant of petition and make a final decision. The Federal Circuit disagreed, and found that the PTO director has authority to delegate institution decision to the Board and nothing in AIA or the Constitution precluded the same panel from rendering the final decision.
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