Case: 18-1693
`
`Document: 17
`
`Pagezl
`
`Filed: 09/19/2018
`
`NOTE: This order is nonprecedential.
`
`@Hniteb étateg @nurt of gppeals
`
`£01?th feheral QEircuit
`
`C&D ZODIAC, INC.,
`Appellant
`
`V.
`
`B/E AEROSPACE, INC.,
`Appellee
`
`2018-1693
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2017-
`01273.
`
`C&D ZODIAC, INC.,
`Appellant
`
`V.
`
`B/E AEROSPACE, INC.,
`Appellee
`
`2018-1694
`
`
`
`Document: 17
`
`Pagezl
`
`Filed: 09/19/2018
`
`NOTE: This order is nonprecedential.
`
`@Hniteb étateg @nurt of gppeals
`
`£01?th feheral QEircuit
`
`C&D ZODIAC, INC.,
`Appellant
`
`V.
`
`B/E AEROSPACE, INC.,
`Appellee
`
`2018-1693
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2017-
`01273.
`
`C&D ZODIAC, INC.,
`Appellant
`
`V.
`
`B/E AEROSPACE, INC.,
`Appellee
`
`2018-1694
`
`
`
`Case: 18-1693
`
`Document: 17
`
`Page:2
`
`Filed209/19/2018
`
`2
`
`C&D ZODIAC, INC. V. B/E AEROSPACE, INC.
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2017-
`01274.
`
`Before TARANTO, HUGHES, and STOLL, Circuit Judges.
`
`HUGHES, Circuit Judge.
`
`0 R D E R
`
`C&D Zodiac, Inc. appeals from the Patent Trial and
`Appeal Board’s decisions denying its petitions to institute
`inter partes review and denying rehearing. Because we
`lack jurisdiction to review these non-institution decisions,
`we dismiss the appeals for lack of jurisdiction.
`
`1.
`
`C&D Zodiac petitioned to institute inter partes review
`of claims 1—12 of U.S. Patent No. 9,365,292 (“the ’292
`patent”) and claims 1—6 of U.S. Patent No. 9,434,476 (“the
`’476 patent”), which both relate to space-saving aircraft
`cabin enclosures, such as lavatories, closets, and galleys.
`For example, the claims in both patents recite an aircraft
`enclosure unit having a forward wall that is substantially
`not flat. The ’292 patent recites that the forward wall is
`adapted to provide “additional space” forward of the
`enclosure unit for a seat support to be positioned further
`aft in the cabin when compared with a position of the seat
`support if the forward wall was substantially flat. The
`’476 patent similarly recites that the seat support can be
`positioned further aft in the cabin than if the cabin in-
`cluded another enclosure unit having a substantially flat
`front wall located in substantially the same position in
`the cabin as the forward wall (the “hypothetical enclosure
`unit limitation”).
`
`The Board, acting on behalf of the Director of the Pa-
`tent Office, issued decisions denying C&D Zodiac’s peti-
`tions. The Board found that it was “unable to determine
`
`
`
`Case: 18-1693
`
`Document: 17
`
`Page23
`
`Filed: 09/19/2018
`
`C&D ZODIAC, INC V. B/E AEROSPACE, INC.
`
`3
`
`the metes and bounds” of the claim limitations. It further
`
`stated that “Petitioner has not provided sufficient infor-
`mation for a determination of the scope” of certain limita-
`tions, such as the “additional space” limitation of the ’292
`patent and the “hypothetical enclosure unit limitation” of
`the ’476 patent, and, “therefore, we cannot conduct the
`necessary factual inquiry for determining whether the
`prior art meets [these] limitation[s].” The Board therefore
`was unable to conclude “that there is a reasonable likeli-
`
`hood that Petitioner would prevail” in its challenges to
`the claims.
`
`C&D Zodiac sought rehearing of the rejection of both
`petitions, which was denied by the Board. C&D Zodiac
`then appealed. This court directed C&D Zodiac to show
`cause why its appeals should not be dismissed for lack of
`jurisdiction. On June 16, 2018, C&D Zodiac responded.
`
`II.
`
`We conclude that C&D Zodiac’s appeals are outside of
`this court’s jurisdiction. Section 314(d) of title 35 of the
`US. Code states “[t]he determination by the Director
`whether to institute an inter partes review under this
`section shall be final and nonappealable.” That statutory
`bar on judicial review is clearly applicable to “the Direc-
`tor’s determinations closely related to the preliminary
`patentability determination” and “the exercise of discre-
`tion not to institute.” Wi-Fi One, LLC v. Broadcom Corp,
`878 F.3d 1364, 1373 (Fed. Cir. 2018) (en banc).
`
`C&D Zodiac relies heavily on Cuozzo Speed Technolo-
`gies, LLC v. Lee, 136 S. Ct. 2131 (2016). But that decision
`confirms, rather than undermines, the conclusion that we
`lack jurisdiction over C&D Zodiac’s challenges here.
`There,
`the Supreme Court determined that Congress
`intended to bar appellate review of institution decisions at
`least when a patent holder merely challenges the Board’s
`determination regarding whether the information pre-
`sented in the petition shows that there is a reasonable
`
`
`
`Case: 18—1693
`
`Document: 17
`
`Page:4
`
`Filed209/19/2018
`
`4
`
`C&D ZODIAC, INC. V. B/E AEROSPACE, INC.
`
`likelihood of success or “where a patent holder grounds its
`claim in a statute closely related to” the decision whether
`to institute inter partes review. Id. at 2142.
`
`C&D Zodiac’s challenges to the Board’s decisions here
`fall comfortably within these categories. It contends in its
`response that the Board’s non-institution decisions were
`arbitrary and capricious because petitioners are not
`always required to define every claim term, “requiring the
`parties to propose a construction is contrary to controlling
`law,” and the Board instituted review on another patent
`that had a similar claim element.
`
`We are also not persuaded by C&D Zodiac’s argument
`that
`the Board acted “outside its statutory limits by
`declining to institute review due to indefiniteness.” To
`the contrary, the Board did not find a patent claim term
`indefinite and did not refuse to institute on indefiniteness
`
`grounds. Rather, the Board concluded that C&D Zodiac
`failed to provide sufficient
`information in its petitions
`concerning the limitations of the claims to show that it
`was reasonably likely that the prior art references would
`have rendered the limitations obvious.*
`
`Accordingly,
`
`IT Is ORDERED THAT:
`
`(1) The stay of the briefing schedule is lifted.
`
`(2) The appeals are dismissed.
`
`*
`
`For these reasons, we would also deny mandamus
`to the extent that C&D Zodiac’s appeals could be con-
`strued as seeking such relief. See In re Dominion Dealer
`Sols., LLC, 749 F.3d 1379, 1381 (Fed. Cir. 2014) (denying
`mandamus based on the absence of a clear and indisputa-
`ble right to relief in view of the statutory scheme preclud-
`ing review of non-institution decisions).
`
`
`
`Case: 18—1693
`
`Document: 17
`
`Page:5
`
`Filed: 09/19/2018
`
`C&D ZODIAC, INC V. B/E AEROSPACE, INC.
`
`5
`
`(3) Each side shall bear its own costs.
`
`FOR THE COURT
`
`/s/ Peter R. Marksteiner
`
`Peter R. Marksteiner
`
`Clerk of Court
`
`s32
`
`
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