(“[A]n issue that presents a substantial question of patent law . . . is governed by our own law, rather than regional circuit law.”) (citing Odyssey Logistics & Tech. Corp. v. Iancu, 959 F.3d 1104, 1108 (Fed. Cir. 2020)); Odyssey Logistics, 959 F.3d at 1108 (“We review procedural rules following ‘the rule of the regional circuit, unless the issue is unique to patent law and therefore exclusively assigned to the Federal Circuit.'”); see also, e.g., Injen Tech. Co., Ltd. v. Advanced Engine Mgmt., Inc., 270 F.Supp.2d 1189, 1192 (S.D. Cal. 2003) (In cases concerning the patent laws, the district court applies the law of the Federal Circuit to patent issues and the law of the circuit in which it sits (‘the regional circuit') to nonpatent issues.... Thus, as a general rule, procedural issues are governed by the law of the regional circuit.”)
The timely filing of a request for reconsideration of the Board's July 2021 decision rendered that decision "nonfinal for purposes of judicial review." Odyssey Logistics & Tech. Corp. v. Iancu, 959 F.3d 1104, 1109 (Fed. Cir. 2020) (quoting Stone v. INS, 514 U.S. 386, 392 (1995)). The November 2021 decision of the PTO is likewise not a final action.
At least six Circuits now hold that the limitations period for "facial" APA challenges begins on the date of final agency action—e.g., when the rule was promulgated—regardless of when the plaintiff was injured. See, e.g., id., at 641; Wind River Min. Corp. v. United States, 946 F.2d 710, 715 (CA9 1991); Dunn-McCampbell Royalty Interest, Inc. v. National Park Serv., 112 F.3d 1283, 1287 (CA5 1997); Harris v. FAA, 353 F.3d 1006, 1009-1010 (CADC 2004); Hire Order Ltd. v. Marianos, 698 F.3d 168, 170 (CA4 2012); Odyssey Logistics & Tech. Corp. v. Iancu, 959 F.3d 1104, 1111-1112 (CA Fed. 2020). By contrast, the Sixth Circuit has stated a generally applicable rule that § 2401(a)'s limitations period begins when the plaintiff is injured by agency action, even if that injury did not occur until many years after the action became final.
We have jurisdiction under 28 U.S.C. § 1295. See Odyssey Logistics & Tech. Corp. v. Iancu , 959 F.3d 1104, 1108 (Fed. Cir. 2020) (explaining that Federal Circuit has jurisdiction over appeals from district court decisions raising APA claims against PTO regarding patents). II
The only issue we decide is the reviewability of the three specific vacatur rulings, an issue that presents a substantial question of patent law and therefore is governed by our own law, rather than regional circuit law. Odyssey Logistics & Tech. Corp. v. Iancu , 959 F.3d 1104, 1108 (Fed. Cir. 2020). We decide the propriety of the district court's dismissal here, which presents only a legal question, de novo.
We apply regional circuit law to our review of a dismissal of a complaint for lack of standing unless the issue is unique to patent law and therefore exclusively assigned to the Federal Circuit. Odyssey Logistics & Tech. Corp. v. Iancu , 959 F.3d 1104, 1108 (Fed. Cir. 2020) (quoting Madey v. Duke Univ. , 307 F.3d 1351, 1358 (Fed. Cir. 2002) ). The Second Circuit reviews "factual findings for clear error and legal conclusions de novo, accepting all material facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff's favor."
We have jurisdiction under 28 U.S.C. § 1295(a)(1). We review de novo a district court's dismissal of APA claims against the PTO. Odyssey Logistics & Tech. Corp. v. Iancu , 959 F.3d 1104, 1108 (Fed. Cir. 2020) (citing Pregis Corp. v. Kappos , 700 F.3d 1348, 1354 (Fed. Cir. 2012) ). II
In patent cases, courts apply "procedural rules following the rule of regional circuit, unless the issue is unique to patent law." Odyssey Logistics & Tech. Corp. v. Iancu, 959 F.3d 1104, 1108 (Fed. Cir. 2020) (internal quotation marks omitted). After the plaintiffs submitted the transcript of Clark's deposition, Brainlab moved for sanctions on the ground that the plaintiffs violated a protective order relating to information discussed during the deposition.