Case: 22-114 Document: 17 Page: 1 Filed: 02/11/2022
NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
In re: B.E. TECHNOLOGY, L.L.C., Petitioner ______________________
2022-114 ______________________
On Petition for Writ of Mandamus to the United States Patent and Trademark Office in Nos. IPR2021-00482, IPR2021-00483, IPR2021-00484, and IPR2021-00485. ______________________
ON PETITION ______________________
Before MOORE, Chief Judge, DYK and STOLL, Circuit Judges. MOORE, Chief Judge. ORDER B.E. Technology, L.L.C. (“B.E.”) petitions this court for a writ of mandamus challenging decisions of the Patent Trial and Appeal Board instituting inter partes review pro- ceedings. Twitter, Inc. and Google LLC oppose. B.E. owns several patents relating to user interfaces that provide advertising over a global computer network. In May 2020, B.E. filed suit in federal district court, alleg- ing that Twitter and Google infringe three of its patents. While those cases were pending, Google and Twitter each
Case: 22-114 Document: 17 Page: 2 Filed: 02/11/2022 2 IN RE: B.E. TECHNOLOGY, L.L.C.
petitioned the United States Patent and Trademark Office to review the patents. B.E. opposed, raising various con- stitutional challenges. In September 2021, the Board in- stituted review. B.E. now petitions for a writ of mandamus seeking to terminate those proceedings, arguing that such review amounts to a violation of its due process rights. Specifi- cally, B.E. argues that the compensation structure of ad- ministrative patent judges (APJs) undermines their ability to act as impartial adjudicators, Pet. at 27; “USPTO lead- ership routinely abuses its case-assignment authority and ‘stacks’ APJ panels to control adjudicative outcomes,” id. at 32; and a “secret” AIA Review Committee deprives B.E. of its right to know whether officials are attempting to im- properly influence a decision, id. at 34. Mandamus is “reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (citation omitted). Under the standard for obtaining mandamus relief, the petitioner must: (1) show it does not have any other method of obtaining relief; (2) show that it has a clear and indisputable legal right; and (3) convince the court that the “writ is appropriate under the circumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) (citation omitted). B.E. fails to meet these necessary conditions for mandamus relief. B.E. has available means to raise its due process chal- lenge on review from final written decisions. See Sec. Peo- ple, Inc. v. Iancu, 971 F.3d 1355, 1359 (Fed. Cir. 2020) (“[T]his court . . . can meaningfully address constitutional questions on appeal.”); Mylan Lab’ys Ltd. v. Janssen Phar- maceutica, N.V., 989 F.3d 1375, 1382 n.5 (Fed. Cir. 2021) (“We note that the Supreme Court has suggested decisions granting institution may be reviewable (to a limited extent) on direct appeal from a final written decision.”). B.E. also has not shown clear legal entitlement to ter- mination of these proceedings. This court has considered
Case: 22-114 Document: 17 Page: 3 Filed: 02/11/2022 IN RE: B.E. TECHNOLOGY, L.L.C. 3
and rejected similar arguments that the APJs’ compensa- tion structure violates due process. See Mobility Workx, LLC v. Unified Pats., LLC, 15 F.4th 1146, 1150 (Fed. Cir. 2021). B.E. has not shown a clear right to a different result here by relying primarily on a self-published article that is outside of the record. B.E.’s other arguments concerning panel stacking and AIA Review Committees rely on noth- ing more than speculation and conjecture that USPTO leadership may attempt to improperly influence these pro- ceedings in favor of Google and Twitter. Accordingly, IT IS ORDERED THAT: (1) The petition is denied. (2) Costs to Google and Twitter. FOR THE COURT
February 11, 2022 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court