March 30, 2021

A recent decision from the U.S. Court of Appeals for the Federal Circuit held that while the Court does not have jurisdiction to review direct appeals of PTAB decisions denying institution of IPR, “judicial review [of such decisions] is available … by petition for mandamus.” Mylan Labs Ltd. v. Janssen Pharmaceutica, N.V., --F.3d--, 2021 WL 936345, at *3-4 (Fed. Cir. Mar. 12, 2021) (discussing the reasoning for this holding).  While Mylan Labs may have opened the door for review of decisions denying institution of IPR via mandamus petitions, the merits panel noted the difficulty in achieving success on the merits.  The panel stated that “[w]hen a mandamus petition challenges a decision denying institution, the mandamus standard will be especially difficult to satisfy,” and that the scope of the Court’s review in this context “is very narrow.” Id. at *5.  The panel also found it “difficult to imagine a mandamus petition that challenges a denial of institution and identifies a clear and indisputable right to relief.” Id. at *6.  The panel considered the merits of the  mandamus petition before it and concluded that a clear right to relief was not shown. Id. at *5-6.