  United States Court of Appeals
      for the Federal Circuit
               ______________________

                MEDTRONIC, INC.,
                   Appellant

                          v.

 ROBERT BOSCH HEALTHCARE SYSTEMS, INC.,
                  Appellee
           ______________________

           2015-1977, 2015-1986, 2015-1987
               ______________________

   Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
IPR2014-00488, IPR2014-00607, IPR2014-00691.
                ______________________

          ON PETITION FOR REHEARING
              ______________________

              Decided: October 20, 2016
               ______________________

    GREGORY H. LANTIER, Wilmer Cutler Pickering Hale
and Dorr LLP, Washington, DC, for appellant. Also
represented by JOSHUA M. KOPPEL; MARK CHRISTOPHER
FLEMING, Boston, MA; DANIEL W. MCDONALD, Merchant
& Gould P.C., Minneapolis, MN.

   MARK S. DAVIES, Orrick, Herrington & Sutcliffe LLP,
Washington, DC, for appellee.    Also represented by
2             MEDTRONIC, INC.    v. ROBERT BOSCH HEALTHCARE



DONALD E. DAYBELL, Irvine, CA; BAS DE BLANK, Menlo
Park, CA; RACHEL WAINER APTER, New York, NY.
               ______________________

    Before LOURIE, DYK, and HUGHES, Circuit Judges.
DYK, Circuit Judge.
    Medtronic, Inc. (“Medtronic”) has filed a petition for
rehearing.    Robert Bosch Healthcare Systems, Inc.
(“Bosch”) opposes.
    The original panel decision, following our decision in
GTNX, Inc. v. INTTRA, Inc., 789 F.3d 1309 (Fed. Cir.
2015), held that a determination by the Patent Trial and
Appeal Board (“Board”) to discontinue inter partes review
proceedings was not reviewable on appeal under 35
U.S.C. § 314(d). The question is whether that decision is
correct in light of the Supreme Court’s decision in Cuozzo
Speed Technologies, LLC v. Lee, 136 S. Ct. 2131 (2016),
which issued after our panel decision.
    We now reaffirm our earlier order. The Board’s vaca-
tur of its institution decisions and termination of the
proceedings constitute decisions whether to institute inter
partes review and are therefore “final and nonappealable”
under § 314(d). Nothing in Cuozzo is to the contrary.
                             I
     In 2013, Bosch brought suit in the United States Dis-
trict Court for the Eastern District of Texas against
Cardiocom, LLC (“Cardiocom”), a subsidiary of Medtronic,
alleging infringement of two patents owned by Bosch
(U.S. Patent Nos. 7,769,605 and 7,870,249). Cardiocom
then petitioned for inter partes review of those two pa-
tents. These petitions were denied in January 2014
because Cardiocom failed to show a reasonable likelihood
that any of the challenged claims was unpatentable on
the grounds asserted. Medtronic then filed three petitions
seeking inter partes review of the same two patents and
MEDTRONIC, INC.   v. ROBERT BOSCH HEALTHCARE              3



listed Medtronic as the sole real party in interest. Bosch
argued that the petitions should be denied because Med-
tronic had failed to name Cardiocom as a real party in
interest as required by 35 U.S.C. § 312(a)(2). The Board
instituted inter partes review proceedings, holding that
Bosch had not established that Cardiocom was a real
party in interest.
     Thereafter the Board granted-in-part Bosch’s motions
seeking additional discovery regarding Cardiocom’s status
as a real party in interest. Based on that discovery, Bosch
moved to terminate the proceedings because Medtronic
had failed to name all real parties in interest. 1 The Board
granted Bosch’s motions, “persuaded [by the collective
evidence] that Medtronic [was] acting as a proxy for
Cardiocom,” J.A. 35, including evidence that Cardiocom
was the defendant in district court infringement suits
concerning the two patents, that Cardiocom had previous-
ly filed its own petitions for inter partes review, that
Cardiocom’s senior executives communicated with Med-
tronic while Medtronic’s petitions were being prepared,
and that Cardiocom paid a portion of the fees for prepar-
ing Medtronic’s petitions. The Board vacated the institu-
tion decisions and terminated the proceedings because of
Medtronic’s failure to comply with the requirement that
all real parties in interest be disclosed.
    Medtronic appealed. Bosch moved to dismiss for lack
of jurisdiction asserting that the Board’s decisions were
not appealable under § 314(d). On November 17, 2015,
we dismissed Medtronic’s appeals for lack of jurisdiction
and denied mandamus relief in a non-precedential order.
The mandate issued that same day. Medtronic then
petitioned for rehearing. On June 30, 2016, we recalled
the mandate, following the Supreme Court’s Cuozzo


   1    If Cardiocom were a real party in interest, the pe-
tition would be time-barred under 35 U.S.C. § 315(b).
4              MEDTRONIC, INC.    v. ROBERT BOSCH HEALTHCARE



decision.    We requested simultaneous supplemental
briefing to “address the question of what action this court
should take on the issue of appealability in view of the
Supreme Court’s decision in Cuozzo.” Order Requesting
Suppl. Briefing 1–2, ECF No. 50. The parties filed sup-
plemental briefs on July 29, 2016.
                             II
     A decision whether to institute inter partes review is
“final and nonappealable” under 35 U.S.C. § 314(d). The
Supreme Court addressed the scope of § 314(d) in Cuozzo.
Specifically, the Court considered whether § 314(d) “bar[s]
a court from considering whether the Patent Office wrong-
ly determined . . . to institute an inter partes review when
it did so on grounds not specifically mentioned in a third
party’s review request.” 136 S. Ct. at 2136 (internal
quotations and citations omitted). There, the patentee
argued that the petition had only “implicitly” challenged
two claims for which the Board instituted inter partes
review proceedings, id. at 2139, and the petition failed to
comply with the requirement of 35 U.S.C. § 312(a)(3) that
it “identif[y], in writing and with particularity, each claim
challenged . . . .” See 136 S. Ct. at 2139. While recogniz-
ing the “strong presumption” favoring judicial review on
questions of statutory interpretation, id. at 2140, the
Court held that § 314(d) operates to bar review in cases
where the challenge “consist[s] of questions that are
closely tied” or “closely related” to “the application and
interpretation of statutes related to the Patent Office’s
decision to initiate inter partes review,” id. at 2141–42.
    We conclude that under Cuozzo a decision whether to
institute inter partes review proceedings pursuant to
§ 314(a) (the issue in Cuozzo) and a reconsideration of
that decision (the situation here) are both barred from
review by § 314(d). Interpreting the “closely related”
language in Cuozzo, we recently concluded that questions
regarding the application and interpretation of “statutes
MEDTRONIC, INC.   v. ROBERT BOSCH HEALTHCARE                 5



‘closely related’ to the decision whether to institute are
necessarily, and at least, those that define the metes and
bounds of the inter partes review process.” Husky Injec-
tion Molding Sys. Ltd. v. Athena Automation Ltd., No. 15-
1726, 2016 WL 5335500, at *6 (Fed. Cir. Sept. 23, 2016).
It is difficult to conceive of a case more “closely related” to
a decision to institute proceedings than a reconsideration
of that very decision. It would be strange to hold that a
decision to institute review would not be reviewable but a
reconsideration of that decision would be reviewable.
This is especially so when, as here, the Board’s reconsid-
eration was predicated on a failure to meet the statutory
requirements for filing a petition under § 312(a), a provi-
sion that “define[s] the metes and bounds of the inter
partes review process.” Husky, 2016 WL 5335500, at *6.
The Board’s reconsideration in this case is fairly charac-
terized as a decision whether to institute proceedings, the
review of which is barred by § 314(d).
    This conclusion is supported by our own cases after
Cuozzo, holding § 314(d) to bar review of questions “close-
ly related” to the institution decision such as assignor
estoppel or the time-bar of § 315(b). See Husky, 2016 WL
5335500, at *6; Wi-Fi One, LLC v. Broadcom Corp., No.
15-1944, 2016 WL 4933298, at *4 (Fed. Cir. Sept. 16,
2016).
    For instance, in Wi-Fi One, we recently considered the
application of § 314(d) to the time-bar of § 315(b) in light
of the Cuozzo decision. There, the patentee asserted that
the party seeking inter partes review was barred “because
it was in privity with a time-barred district court liti-
gant.” Wi-Fi One, 2016 WL 4933298, at *2. It argued
that Cuozzo implicitly overruled our prior decision in
Achates holding that § 314(d) barred review. Id. at *3; see
Achates Reference Publ’g, Inc. v. Apple Inc., 803 F.3d 652
(Fed. Cir. 2015). We rejected the same argument, now
advanced by Medtronic, that the “under this section”
language of § 314(d) limits the bar on reviewability only
6              MEDTRONIC, INC.   v. ROBERT BOSCH HEALTHCARE



to questions arising under § 314. Wi-Fi One, 2016 WL
4933298, at *3–4. Rather, we concluded that “[n]othing in
Cuozzo casts doubt on that interpretation of the statute,
especially in light of the fact that the Supreme Court held
that the particularity requirement, which is contained in
section 312, is nonappealable.” Id. at *4.
    Finally, the statute contemplates how appeals from
final decisions will generally be limited to a “decision with
respect to . . . patentability.” 35 U.S.C. § 318(a). There
was no such decision here. See GTNX, 789 F.3d at 1311.
                             III
    Medtronic argues that Cuozzo reserved the question
of § 314(d)’s effect on “appeals that implicate constitu-
tional questions, that depend on other less closely related
statutes, or that present other questions of interpretation
that reach, in terms of scope and impact, well beyond ‘this
section.’” 136 S. Ct. at 2141. Thus, § 314(d) would not
categorically bar review of a due process challenge based
on insufficient notice that affects an entire proceeding.
Id. Similarly, it would not “enable the agency to act
outside its statutory limits by, for example, canceling a
patent claim for ‘indefiniteness under § 112’ in inter
partes review.” Id. at 2141–42.
    Medtronic asserts that its particular challenge is re-
viewable because the Board “exceeded its [statutory]
authority when it terminated Medtronic’s petitions after
institution on a non-merits issue . . . .” Medtronic Suppl.
Br. 18. In other words, Medtronic argues that the Board
lacked authority to reconsider its earlier decisions. But
§ 318(a) contemplates that a proceeding can be “dis-
missed” after it is instituted, and, as our prior cases have
held, “administrative agencies possess inherent authority
to reconsider their decisions, subject to certain limita-
tions, regardless of whether they possess explicit statuto-
ry authority to do so.” Tokyo Kikai Seisakusho, Ltd. v.
United States, 529 F.3d 1352, 1360 (Fed. Cir. 2008). In
MEDTRONIC, INC.   v. ROBERT BOSCH HEALTHCARE                   7



GTNX we considered the application of this principle to
the Patent Office. There the Board similarly vacated its
initial institution decisions because a prior civil action
barred the party from seeking review under 35 U.S.C.
§ 325(a)(1). 789 F.3d at 1311. We held that the Board
has inherent authority to reconsider its decisions, noting
that “nothing in the statute or regulations applicable here
. . . clearly deprives the Board of that default authority.”
Id. at 1313. We also explained that “[i]t is strained to
describe this as anything but a ‘determination . . . wheth-
er to institute’ proceedings—statutory language that is
not limited to an initial determination to the exclusion of
a determination on reconsideration” and that such a
decision is “final and nonappealable.” Id. at 1312 (cita-
tions omitted). The Board did not exceed its authority in
reconsidering its institution decisions. 2



    2    Medtronic also argues that the Board “does not
treat a termination decision as a ‘reconsider[ation]’ of the
determination whether to institute.” Medtronic Suppl.
Br. 12 (alteration in original). Specifically, Medtronic
cites to Corning Optical Commc’ns RF, LLC v. PPC
Broadband, Inc., IPR2014-00440, Paper 68 (P.T.A.B. Aug.
18, 2015). Similar to the case here, in Corning the Board
vacated its institution decision and terminated proceed-
ings on a motion to dismiss by the patent owner because
of the petitioner’s failure to list all real parties in interest.
Id. at 4. In a request for rehearing, the petitioner argued
that the Board had erred by applying a “preponderance of
the evidence” standard as opposed to an “abuse of discre-
tion” standard as required by 37 C.F.R. § 42.71(c) for
reviewing requests for rehearing.             Corning Optical
Commc’ns RF, LLC v. PPC Broadband, Inc., IPR2014-
00440, Paper 70 at 6 (P.T.A.B. Dec. 9, 2015). On rehear-
ing the Board rejected this argument because the decision
to terminate proceedings was predicated on a motion to
8             MEDTRONIC, INC.    v. ROBERT BOSCH HEALTHCARE



    Medtronic also argues that this case involves a consti-
tutional issue because the Board “deprived Medtronic of
due process” given its inconsistent application of the real
party in interest requirement. Medtronic Suppl. Br. 19.
But there is no colorable constitutional issue.
    In sum, as we previously held in GTNX, § 314(d) op-
erates to bar review of the Board’s reconsideration of its
decision to institute inter partes review proceedings.
                            IV
    In the alternative, Medtronic requests that we treat
this appeal as a petition for a writ of mandamus. But
Medtronic has not demonstrated entitlement to manda-
mus relief.
    In In re Dominion Dealer Solutions, LLC, 749 F.3d
1379 (Fed. Cir. 2014), which also involved a requested
inter partes review, we denied mandamus based on the
absence of a “clear and indisputable” right to relief in
view of the statutory scheme precluding review of non-
institution decisions. Id. at 1381 (citation and internal
quotation marks omitted). Given that the same statutory
provisions preclude Medtronic from appealing the Board’s
decision, here too it cannot be said that Medtronic has a
clear and indisputable right to have this court hear its
challenges to the Board’s decision.


dismiss filed by the patent owner, not a request for re-
hearing of the institution decision as of right pursuant to
37 C.F.R. § 42.71(d). Corning, Paper 70 at 6. The Board
held that the “preponderance of the evidence” standard
was appropriate given the requirements for motions
under 37 C.F.R. §§ 42.20(a), (c), 42.1(d). Corning, Paper
70 at 6–7. Corning does not hold that requests to dismiss
pending proceedings are not requests for reconsideration.
It merely holds that such requests do not fall within 37
C.F.R. § 42.71(d). See GTNX, 789 F.3d at 1312–13.
MEDTRONIC, INC.   v. ROBERT BOSCH HEALTHCARE      9



   Panel rehearing is not granted in this case.
