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In re Procter & Gamble Co.

United States Court of Appeals, Federal Circuit

April 24, 2014

IN RE THE PROCTER & GAMBLE COMPANY, Petitioner

On Petition for Writ of Mandamus to the United States Patent and Trademark Office in Nos. IPR2013-00438, IPR2013-00448, and IPR2013-00450.

GREGORY A. CASTANIA, Jones Day, of Washington, DC, for petitioner. With him on the petition were DAVID M. MAIORANA, of Cleveland, Ohio, and DAVID M. WEIRICH, The Procter & Gamble Company, of Cincinnati, Ohio.

WILLIAM H. OLDACH III, Vorys, Sater, Seymour and Pease, LLP, of Washington, DC, for respondent Clio USA, Inc. With him on the response was LOUIS GUBINSKY.

NATHAN K. KELLEY, Solicitor, United States Patent and Trademark Office, of Alexandria, Virginia, for respondent United States Patent and Trademark Office. With him on the response were JEREMIAH S. HELM and JOSEPH MATAL, Associate Solicitors.

Before LOURIE, PROST, and TARANTO, Circuit Judges.

OPINION

Page 1377

ON PETITION

Taranto, Circuit Judge .

ORDER

Clio USA, Inc., petitioned the Director of the United States Patent & Trademark Office to institute inter partes reviews of three patents owned by The Proctor & Gamble Company (P& G). The Director, through her delegee, granted the petitions. P& G now petitions this court to issue a writ of mandamus that would direct the PTO to withdraw the orders instituting inter partes reviews of the three P& G patents.

In today's decision in St. Jude Medical, Cardiology Div., Inc. v. Volcano Corp., No. 2014-1183, we describe the statutory scheme governing inter partes reviews, 35 U.S.C. § § 311-319, and conclude that a decision by the Director not to institute an inter partes review may not be appealed to this court. In In re Dominion Dealer Solutions, LLC, No. 2014-109, also issued today, we conclude that a non-institution decision may not be directly reviewed by this court through the extraordinary means of mandamus. The present case involves a decision by the Director to institute an inter partes review. We conclude that immediate review of such a decision is not available in this court. We therefore deny P& G's petition for mandamus relief.

Background

P& G owns three patents that claim systems or methods for whitening teeth--U.S. Patent Nos. 5,891,453, 5,894,017, and 7,122,199. Those patents have been involved in two district-court actions relevant here. First, P& G sued Team Technologies, Inc., alleging infringement of the three patents, in the United States District Court for the Southern District of Ohio. Clio then filed a declaratory-judgment action against P& G in the United States District Court for ...


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