Despite Fall Line's arguments otherwise, "a writ of mandamus is not intended to be simply an alternative means of obtaining appellate relief, particularly where relief by appeal has been specifically prohibited by Congress." In re Power Integrations, Inc., 899 F.3d 1316, 1319 (Fed. Cir. 2018). And Fall Line's challenge to the constitutional fix adopted by this court in Arthrex invokes the same arguments that we rejected in our denial of en banc review in that case.
Finally, MaxPower has not shown that this mandamus petition is not merely a "means of avoiding the statutory prohibition on appellate review of agency institution decisions." In re Power Integrations, Inc. , 899 F.3d 1316, 1321 (Fed. Cir. 2018). MaxPower readily admits, "This mandamus petition challenges decisions instituting inter partes review."
But the Court today will not say whether mandamus is available where the ยง 314(d) bar applies, and the Federal Circuit has cast doubt on that possibility. In re Power Integrations, Inc. , 899 F.3d 1316, 1319 (2018) ("We have held that the statutory prohibition on appeals from decisions not to institute inter partes review cannot be sidestepped simply by styling the request for review as a petition for mandamus"); In re Procter & Gamble Co. , 749 F.3d 1376 (2014) ; In re Dominion Dealer Solutions, LLC. , 749 F.3d 1379 (2014). Even assuming mandamus is available, it is a "drastic [remedy], to be invoked only in extraordinary situations."
Several petitioners have sought mandamus relief from some aspect of an institution decision. See, e.g. , In re Power Integrations, Inc. , 899 F.3d 1316, 1318 (Fed. Cir. 2018) ; GTNX, Inc. , 789 F.3d at 1313 ; In re Dominion Dealer , 749 F.3d 1379, 1381 (Fed. Cir. 2014) ; see also, e.g. , Apple Inc. v. Optis Cellular Tech., LLC , No. 2021-1043, 2020 WL 7753630, at *1 (Fed. Cir. Dec. 21, 2020) (non-precedential); In re Cisco Sys. Inc ., 834 F. App'x 571, 573 (Fed. Cir. 2020) (non-precedential). Each time, we held the petitioner had failed to show a clear right to relief and denied mandamus rather than dismissed the petition.
Such challenges, both procedural and substantive, rank as questions closely tied to the application and interpretation of statutes relating to the Patent Office's decision whether to initiate review, and hence are outside of our jurisdiction. Cf. In re Power Integrations, Inc., 899 F.3d 1316, 1321 (Fed. Cir. 2018) ("Nothing in section 314(d) suggests that the prohibition on review applies only to the merits of the Board's non-institution decisions . . . ."). Cisco alternatively requests that this court take up its challenge on mandamus.