Another Non-Appealable Issue

Esip Series 2, LLC v. Puzhen Life USA, Appeal No. 2019-1659 (Fed. Cir., May 19, 2020)

Photo of John P. Isacson
John P. Isacson

Puzhen petitioned for an IPR against Esip’s patent relating to a combining of germicidal protection and aromatic diffusion in an enclosed space. Some of the claims were held to be obvious by the PTAB and the Federal Circuit affirmed on that issue.

During the IPR, Esip argued that Puzhen omitted two parties as real parties in interest, and therefore the IPR should not have been instituted. Slip op. at 2, 6. The PTAB considered Esip’s evidence, and determined that the omitted parties were not real parties in interest, and thus not a bar against institution.   Slip. Op. at 6.

Esip sought to have the real party in interest determination reviewed on appeal. The Federal Circuit declined, and cited the Supreme Court decisions in Cuozzo Speed and Thryv, which held that institution decisions cannot be appealed. Slip op. at 11. The Federal Circuit affirmed the judgment of the PTAB.