Belkin Loses Federal Circuit Appeal Of Wireless Router Patent Ruling

Los Angeles Patent AttorneyOrange County – The Federal Circuit on Tuesday shut down Belkin International Inc.’s attempt to have the U.S. Patent and Trademark Office declare a patent owned by a rival wireless router company to be invalid based on prior art.

The appeal arose from an inter partes reexamination of OptimumPath LLC’s U.S. Patent Number 7,035,281, which relates to a wireless router, in which Belkin raised 10 substantial new questions of patentability based on four prior art references. Belkin and fellow router makers Cisco Linksys LLC, D-Link Systems Inc. and Netgear Inc. had requested the reexamination after OptimumPath accused them of infringement.

The PTO’s Board of Patent Appeals and Interferences was correct to refuse to consider the issues that the PTO director found not to raise a substantial new question of patentability, the appeals court ruled in affirming the board’s decision.

Belkin argued that the board has jurisdiction to consider prior art found not to raise a substantial new question of patentability on inter partes reexamination in circumstances where reexamination is subsequently granted for the same claim on another reference.

The PTO responded that the board was barred from considering such prior art even though a substantail new question of patentability was found with respect to another reference.

“We agree with the director that the board did not err in not considering issues that the director had found not to raise a substantial new question of patentability” concerning the claims at issue, the Federal Circuit said. “Such an issue is non-appealable.”

To allow an otherwise non-appealable decision by the PTO director to become appealable simply by raising it a second time during later reexamination would impermissibly circumvent the statutory bar on appeals, the appeals court ruled.

“The proper course of action was for Belkin to have petitioned the director to review the determination that the arguments . . . did not raise a substantial new question of patentability,” the Federal Circuit said. “Belkin did not do so, and thus that decision became final and non-appealable, rendering those issues beyond the scope of the reexamination.”




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