Wi-Fi One, LLC v. Broadcom Corporation

United States Court of Appeals
for the Federal Circuit
______________________
WI-FI ONE, LLC,
Appellant
v.
BROADCOM CORPORATION,
Appellee
______________________
2015-1944, -1945, -1946
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2013-
00601, IPR2013-602, IPR2013-00636.
______________________
ON PETITION FOR REHEARING
______________________
Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN,
HUGHES, and STOLL, Circuit Judges
PER CURIAM.
ORDER
Appellant Wi-Fi One, LLC filed a petition for rehear-
ing and rehearing en banc in all three appeals. A response
was invited from the Appellee, Broadcom Corporation, to
the three petitions. The petitions and responses were
considered by the panel that heard the appeal, see Fed.
2 WI-FI ONE, LLC v. BROADCOM CORPORATION
Cir. R. 35 Practice Notes, and thereafter referred to the
circuit judges in regular active service. A poll was re-
quested and taken, and the court decided that the appeal
warrants en banc consideration.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petitions for rehearing en banc filed by
Appellant Wi-Fi One, LLC are granted.
(2) The court’s opinions in Wi-Fi One, LLC v.
Broadcom Corp., 837 F.3d 1329 (Fed. Cir. 2016),
Wi-Fi One, LLC v. Broadcom Corp., 2016 WL
4933344 (Fed. Cir. Sept. 16, 2016), and Wi-Fi One,
LLC v. Broadcom Corp., 2016 WL 4933418 (Fed.
Cir. Sept. 16, 2016) are vacated, and the appeals
are reinstated.
(3) The Appellant and Appellee are requested to
file supplemental briefs. The briefs should address
the following question:
Should this court overrule Achates Refer-
ence Publishing, Inc. v. Apple Inc., 803
F.3d 652 (Fed. Cir. 2015) and hold that
judicial review is available for a patent
owner to challenge the PTO’s determina-
tion that the petitioner satisfied the time-
liness requirement of 35 U.S.C. § 315(b)
governing the filing of petitions for inter
partes review?
Briefing should be limited to this question.
(4) The supplemental en banc briefs and briefs of
any amici curiae shall be electronically filed in the
ECF system, and thirty paper copies of each brief
shall be filed with the court. Two paper copies of
all filings shall be served on opposing counsel.
Briefs shall adhere to the type-volume limitations
WI-FI ONE, LLC v. BROADCOM CORPORATION 3
set forth in Federal Rule of Appellate Procedure
32 and Federal Circuit Rule 32.
(5) The supplemental brief of Appellant must be
filed by Monday, February 13, 2017. Any amicus
brief supporting Appellant’s position or support-
ing neither position must be filed by Thursday,
February 23, 2017. Appellee’s supplemental brief
must be filed by Wednesday, March 15, 2017. Any
amicus brief supporting Appellee’s position must
be filed by Monday, March 27, 2017. Appellant’s
reply brief must be filed by Wednesday, March 29,
2017.
(6) The court invites the views of the United
States Patent and Trademark Office as amicus
curiae. Any other briefs of amicus curiae may be
filed without consent and leave of court. All ami-
cus briefs must comply with Federal Rule of Ap-
pellate Procedure 29 and Federal Circuit Rule 29.
All amicus briefs shall be filed as stated above.
(7) The appeal will be heard en banc on the basis
of the supplemental briefs ordered herein and oral
argument.
(8) Oral argument will be scheduled at a later
date.
FOR THE COURT
January 4, 2017 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court