Dyk, Circuit Judge.
Credit Acceptance Corp. ("CAC") appeals the final written decision of the Patent Trial and Appeal Board ("Board") in a Covered Business Method ("CBM") review proceeding. The Board determined that claims 10-12 and 14-33 of CAC's U.S. Patent No. 6,950,807 B2 ("the '807 patent") are directed to patent-ineligible subject matter under 35 U.S.C. § 101. CAC appeals the Board's determination that the
CAC is the assignee of the '807 patent, which includes both system and method claims directed to "provid[ing] financing for allowing a customer to purchase a product selected from an inventory of products maintained by a dealer." '807 patent, abstract. In one embodiment, the products are vehicles for sale at a car dealership. The invention involves, inter alia, "maintaining a database of the dealer's inventory," gathering financing information from the customer, and "presenting a financing package to the dealer for each individual product in the dealer's inventory." Id.
Certain claims, such as the claims at issue here, involve the application of these steps using elements such as a "database," a "user terminal," and a "server." For example, representative claim 25 provides,
'807 patent, col. 15 ll. 17-38.
Relevant to this appeal are two CBM review proceedings involving the '807 patent and the same petitioner (Westlake). In the first proceeding, Westlake petitioned for CBM review of all claims (1-42) of the '807 patent, asserting that the claims are ineligible for patenting under 35 U.S.C. § 101. On March 31, 2014, in a decision that pre-dated the Supreme Court's decision in Alice Corp. v. CLS Bank International, ___ U.S. ___, 134 S.Ct. 2347, 189 L.Ed.2d 296 (2014), the Board instituted review based on the § 101 grounds but with respect to fewer than all of the challenged claims. The Board instituted review of claims 1-9, 13, and 34-42, but it did not institute review of claims 10-12 and 14-33 (the claims now at issue). The Board was unpersuaded that claims 10-12 and 14-33 were more likely than not ineligible under this court's then-prevailing decision in Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335 (Fed. Cir. 2013) ("Ultramercial II").
In its institution decision, the Board rejected CAC's argument that the existence of the first CBM proceeding estopped Westlake from challenging claims 10-12 and 14-33 under 35 U.S.C. § 325(e)(1). The Board's determination was based on the fact that the first proceeding had not yet resulted in a final written decision, and therefore, CAC's estoppel argument was not ripe.
The first and second instituted CBM proceedings continued in parallel until March 24, 2015, when the Board issued a final written decision in the first proceeding concluding that claims 1-9, 13, and 34-42 of the '807 patent are unpatentable under 35 U.S.C. § 101.
On January 25, 2016, the Board issued a final written decision in the second CBM proceeding concluding that claims 10-12 and 14-33 of the '807 patent are unpatentable under 35 U.S.C. § 101.
CAC appeals that decision. It asserts that Westlake should have been estopped from maintaining its challenge to claims 10-12 and 14-33 and argues that the Board's § 101 decision was in error. Westlake opposes, and the United States Patent and Trademark Office ("PTO") has intervened to support the Board's decision on all issues. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). "We review the Board's factual findings for substantial evidence and its legal conclusions de novo." Synopsys, Inc. v. Mentor Graphics Corp., 814 F.3d 1309, 1314 (Fed. Cir. 2016).
CAC first argues that estoppel applies here to bar Westlake from challenging
35 U.S.C. § 325(e)(1) (emphasis added).
As a threshold matter, both Westlake and the PTO argue that a determination by the Board on 35 U.S.C. § 325(e)(1) is nonappealable, and therefore, this court has no jurisdiction to review the Board's estoppel determination. We disagree.
The PTO relies on 35 U.S.C. § 324(e), which provides, "[t]he determination by the Director whether to institute a post-grant review under this section shall be final and nonappealable." The PTO asserts that the Board's estoppel decision is akin to a decision to institute review, which is nonappealable. In Cuozzo Speed Technologies, LLC v. Lee, ___ U.S. ___, 136 S.Ct. 2131, 195 L.Ed.2d 423 (2016), the Supreme Court considered the parallel "no appeal" statute for inter partes review ("IPR") proceedings, 35 U.S.C. § 314(d), and held that Board decisions are nonappealable "where the grounds for attacking the decision to institute inter partes review consist of questions that are closely tied to the application and interpretation of statutes related to the Patent Office's decision to initiate inter partes review." Id. at 2141. The Court described possible exceptions to this rule where review may be available:
Id. at 2141-42 (citations omitted).
Applying these principles, the Court held that the Federal Circuit may not review
The estoppel provision at issue here, § 325(e)(1) (like the comparable IPR provision, § 315(e)(1)), is distinct from the issues addressed in Cuozzo. Specifically, § 325(e)(1) does not refer to "institution" decisions and in fact is not limited to institution decisions. While the appeal bar precludes review of a "request" for proceedings, which might be analogized to an institution decision, on its face, § 325(e)(1) contemplates that estoppel governs at any stage of a subsequent proceeding before the PTO — its application is not limited to the institution stage. Section 325(e)(1) provides that an estopped petitioner "may not request or maintain a proceeding before the office." Id. (emphasis added). As the posture of this case demonstrates, in some situations § 325(e)(1) could operate to terminate a proceeding even where there existed no cause for termination at the time a petition was instituted (as was the case here).
We recently addressed similar language in pre-AIA 35 U.S.C. § 317(b) (2006), which governed estoppel applicable to inter partes reexamination proceedings. Section 317(b) provided that "[o]nce a final decision has been entered against a party" in a civil action "that the party has not sustained its burden of proving the invalidity of any patent claim," then "an inter partes reexamination requested by that party or its privies on the basis of [issues the party raised or could have raised in district court] may not thereafter be maintained by the [PTO]." Id. (emphasis added). In In re Affinity Labs of Texas, LLC, 856 F.3d 883 (Fed. Cir. 2017), we held that the "maintain" language of § 317(b) applies to terminate an inter partes reexamination proceeding that had already been granted where a final decision issues in a civil action during the pendency of that proceeding. Id. at 893. This case supports giving a similar interpretation to the "maintain" language here.
Moreover, the estoppel effect created by § 325(e)(1) after the Board issues a final written decision is not specifically directed to subsequent CBM proceedings; instead it applies generally to any "proceeding before the Office,"
Similar to § 325(e)(1), which applies to proceedings before the PTO, AIA § 18(a)(1)(D) provides,
There is no suggestion that this court lacks jurisdiction to consider estoppel issues stemming from a final written decision under this statute in the context of subsequent district court and ITC proceedings. Applying different appealability standards between the Board and district courts (and the ITC) could lead to conflicting outcomes. For instance, after a final written decision, if the petitioner raised identical arguments in both a subsequent CBM review and in district court and the Board and court reach different conclusions as to estoppel, only the court's decision would be appealable. And if, on appeal from the district court, the Federal Circuit were to decide contrary to the Board's conclusion, there is no clear mechanism for correcting the Board.
For all of these reasons, the estoppel dispute in this case is neither a challenge to the Board's institution decision, nor is it "closely tied" to any "statute[ ] related to the Patent Office's decision to initiate [CBM] review." Cuozzo, 136 S.Ct. at 2141.
Westlake nonetheless argues that this court may review only a final written decision of the Board, and the order denying CAC's motion to terminate is not a final written decision. This argument flows from 35 U.S.C. § 141(c), which provides,
35 U.S.C. § 141(c) (emphasis added). Section 328(a), in turn, provides that the "Board shall issue a final written decision with respect to the patentability" of the challenged claims. 35 U.S.C. § 328(a). Westlake argues that under these statutes, a dissatisfied party may appeal only a final written decision with respect to patentability, relying on GTNX, Inc. v. INTTRA, Inc., 789 F.3d 1309 (Fed. Cir. 2015).
In GTNX, the Board instituted CBM review but later determined that its institution decision was in error. Id. at 1311. The Board vacated the institution decision and terminated review without issuing a final written decision. Id. The petitioner appealed. The court dismissed the appeal for lack of jurisdiction, characterizing the Board's vacatur decision as a decision whether to institute proceedings and holding that there was no appealable final written decision with respect to patentability within the meaning of 35 U.S.C. § 141(c). See GTNX, 789 F.3d at 1311-12; see also Medtronic, Inc. v. Robert Bosch Healthcare Sys., Inc., 839 F.3d 1382, 1385-86 (Fed. Cir. 2016) (applying GTNX to an IPR proceeding).
Here, the Board did issue a final written decision with respect to patentability, and CAC appeals that decision. Because the statute prohibits an estopped petitioner from "maintain[ing]" a proceeding, the Board necessarily found that Westlake was
We conclude that we have jurisdiction to review the CAC's estoppel argument regarding 35 U.S.C. § 325(e)(1).
We turn to the merits of CAC's estoppel argument. CAC points out that estoppel applies under 35 U.S.C. § 325(e)(1) with respect to a claim previously subject to a "review of [that] claim... that results in a final written decision under section 328(a)." Then CAC suggests that a final written decision under 35 U.S.C. § 328(a) covers all claims "challenged" in a petition, not only the claims that were instituted for review. That section provides,
35 U.S.C. § 328(a) (emphasis added). CAC argues that, read together, the statutes require that estoppel applies to all claims challenged in a petition where any portion of the petition results in a final written decision, even if fewer than all of the challenged claims are instituted for review and explicitly ruled upon in that decision. In short, "a final written decision triggers estoppel not only for instituted claims, but also non-instituted claims." CAC Opening Br. 16.
CAC's argument is foreclosed by our decision in Synopsys, which interpreted statutory language in the IPR context that is identical to language in the provisions governing CBM proceedings. As the Synopsys court recognized, "[t]he validity of claims for which the Board did not institute inter partes review can still be litigated in district court," and this caused "no inconsistency" with the AIA estoppel provisions. 814 F.3d at 1316; see also 35 U.S.C. § 315(e)(2) (IPR estoppel provision applicable to subsequent civil actions). It equally follows that there is no estoppel in future PTO proceedings.
In Synopsys, we held that, under the statute and the PTO's regulations, the Board may institute an IPR on a claim-by-claim basis, such that "the Board can pick and choose among the claims in the decision to institute." 814 F.3d at 1316. The court also explained that 35 U.S.C. § 318(a) (which is identical in all relevant aspects to § 328(a)) "only requires the Board to address claims as to which review was granted" in a final written decision. 814 F.3d at 1317. Therefore, a final written decision on instituted claims is not a final determination on the patentability of non-instituted claims. See 814 F.3d at 1315.
Because a final written decision does not determine the patentability of non-instituted claims, it follows that estoppel does not apply to those non-instituted claims in future proceedings before the PTO. On its face, the relevant IPR estoppel statute, § 315(e)(1) (similar to the PGR estoppel statute, § 325(e)(1)) applies on a claim-byclaim basis. It provides, "[t]he petitioner in an inter partes review of a claim in a patent ... that results in a final written decision under section 318(a) ... may not request or maintain a proceeding before the Office with respect to that claim...." 35 U.S.C. § 315(e)(1) (emphasis added). There is no IPR estoppel with respect to a claim as to which no final written decision results. See id.; see also Affinity Labs, 856 F.3d at 893 (holding that pre-AIA 35 U.S.C. § 317(b) (2006), which estops a losing litigant from requesting or maintaining a subsequent "inter partes reexamination
This conclusion is reinforced by this court's decision in Shaw Industries Group, Inc. v. Automated Creel Systems, Inc., 817 F.3d 1293 (Fed. Cir. 2016). In Shaw, the petitioner requested IPR of certain claims on three separate grounds. Id. at 1296. The Board instituted review on two of the grounds and denied the petition with respect to the third (the "Payne-based" ground). Id. at 1296-97. Later, the Board issued a final written decision upholding the claims over the two instituted grounds. Id. at 1297. On appeal, the court denied the petitioner's request for mandamus relief, explaining that the petitioner would not be estopped from pursuing a Payne-based challenge to the claims in future proceedings. Id. at 1300. The court explained that the IPR estoppel statute only applies to "any ground that the petitioner raised or reasonably could have raised during" the first review. Id. at 1300 (quoting 35 U.S.C. § 315(e)). Because "the PTO denied the petition as to [the Payne-based ground], ... no IPR was instituted on that ground," and thus, the petitioner "did not raise — nor could it have reasonably raised — the Payne-based ground during the IPR." Id.; see also HP Inc. v. MPHJ Tech. Invs., LLC, 817 F.3d 1339, 1347 (Fed. Cir. 2016) (following Shaw).
The holdings in Synopsys and Shaw with respect to IPRs apply to the PGR statutes and regulations as well since the PGR provisions contain identical language. Compare 35 U.S.C. §§ 314(a), 315(e)(1), and 37 C.F.R. § 42.108, with 35 U.S.C. §§ 324(a), 325(e)(1), and 37 C.F.R. § 42.208. The IPR statutes and PGR statutes (as adopted into the CBM framework) were all enacted simultaneously in the AIA. "[T]he normal rule of statutory interpretation [is] that identical words used in different parts of the same statute are generally presumed to have the same meaning." IBP, Inc. v. Alvarez, 546 U.S. 21, 34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). To be sure, despite the parallel nature of the IPR and CBM provisions, there are significant structural differences in the overall schemes, but none of these differences is relevant here. Accordingly, we adopt the reasoning and conclusions of our IPR cases.
CAC presents a host of policy arguments supposedly supporting a contrary result. "Such policy arguments are more properly addressed to legislators or administrators, not to judges." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 864, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, ___ U.S. ___, 137 S.Ct. 954, 967, 197 L.Ed.2d 292 (2017). In any event, these and similar concerns are adequately addressed by 35 U.S.C. § 325(d), which provides the Director with discretion to "take into account whether, and reject the petition or request because, the same or substantially the same prior art or arguments previously were presented to the Office."
We conclude that 35 U.S.C. § 325(e)(1) does not apply in a subsequent proceeding to claims upon which the Board declined to institute review. Accordingly, Westlake was not estopped from challenging claims 10-12 and 14-33 of the '807 patent on the basis of 35 U.S.C. § 101.
CAC argues that the Board erred in determining that claims 10-12 and 14-33 of the '807 patent are ineligible for patenting. We review the Board's conclusions with respect to patent eligibility under § 101 de novo. Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1236 (Fed. Cir. 2016). "Whoever invents or discovers any
CAC asserts that claim 25, quoted above, is representative. Putting some of the generic computer elements aside, claim 25 is directed to a system for maintaining a database of information about the items in a dealer's inventory, obtaining financial information about a customer from a user, combining these two sources of information to create a financing package for each of the inventoried items, and presenting the financing packages to the user. Some claims contain additional details about the financing process: for example, the inventory database includes the dealer cost and sale price of each item; the customer information includes an available down payment amount; the system calculates a credit score for the customer; and the financing package includes a calculated front-end profit for the dealer, an advance amount, and a down payment amount (claim 10 as dependent from claim 1, claim 26).
The Board determined that the claims are directed to the abstract idea of "processing an application for financing a purchase." J.A. 16. We agree. Each of the claims is directed to the abstract idea of processing an application for financing a purchase. We see no meaningful distinction between this type of financial industry practice and "the concept of intermediated settlement" held to be abstract in Alice, 134 S.Ct. at 2356, or the "basic concept of hedging" held to be abstract in Bilski v. Kappos, 561 U.S. 593, 611, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010).
Indeed, the '807 patent specification itself demonstrates that processing an application for financing a purchase is "a fundamental economic practice long prevalent in our system of commerce." Alice, 134 S.Ct. at 2356 (quoting Bilski, 561 U.S. at 611, 130 S.Ct. 3218). The background portion of the specification explains that "[u]nder present methods for selling cars and trucks," "[t]he financing process begins with the salesperson ... completing a credit application. This involves receiving detailed financial information from the customer...." '807 patent, col. 1 ll. 23, 34-37. "The application typically also includes the price of the vehicle ..., the amount of the down payment ..., and ... the dealer's cost in obtaining the vehicle.... Once the application is completed, the salesperson sends the application to a lending institution for approval." Id. col. 1 ll. 39-46. At
CAC suggests that the claims are not abstract because they "improve[ ] the functionality of the general purpose computer by programming fundamentally new features." CAC Opening Br. 29. But this is so only in the sense that the claims permit automation of previously manual processing of loan applications. See id. at 27 ("There is no evidence of record that, prior to the '807 [p]atent, computers had been configured to automatically generate comprehensive reports of financing options. Instead, car dealerships secured financing for customers through ... [a] series of manual steps." (citations omitted)). Our prior cases have made clear that mere automation of manual processes using generic computers does not constitute a patentable improvement in computer technology. In those cases, "the focus of the claims is not on such an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools." Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016); see also In re TLI Commc'ns LLC Patent Litig., 823 F.3d 607, 612 (Fed. Cir. 2016); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) ("At best, the claims describe the automation of the fundamental economic concept of offer-based price optimization through the use of generic-computer functions."). The invention's "communication between previously unconnected systems — the dealer's inventory database, a user credit information input terminal, and creditor underwriting servers," CAC Opening Br. 28, does not amount to an improvement in computer technology.
This conclusion is supported — not contradicted — by Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). In Enfish, the court explained, "the first step in the Alice inquiry ... asks whether the focus of the claims is on the specific asserted improvement in computer capabilities... or, instead, on a process that qualifies as an `abstract idea' for which computers are invoked merely as a tool." Id. at 1335-36. The claims of the '807 patent are plainly of the second category. The "focus of the claims" is on the method of financing, and the recited generic computer elements "are invoked merely as a tool." Id. The invention here is quite unlike the "self-referential table," which was a "specific improvement to the way computers operate," held to be not abstract in Enfish, 822 F.3d at 1336, and the "specific asserted improvement in computer animation, i.e., the automatic use of rules of a particular type" held to be not abstract in McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016).
CAC also asserts that claim 25 is not directed to an abstract financial process, but rather to "configuring a computer system to combine data from multiple electronic data sources ... to synthesize a comprehensive report of structures for a dealer and a creditor to co-finance a purchase." CAC Opening Br. 26. But even under CAC's view, the claim is abstract under our precedent. We have explained that "collecting information, including when limited to particular content (which does not change its character as information),
We have also explained that the output of data analysis can be abstract. "[M]erely presenting the results of abstract processes of collecting and analyzing information, without more (such as identifying a particular tool for presentation), is abstract as an ancillary part of such collection and analysis." Elec. Power Grp., 830 F.3d at 1354. We have found particularly that data processing to facilitate financing is a patent-ineligible abstract concept. See Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324 (Fed. Cir. 2016) (holding that claims are abstract where they "recite nothing more than the collection of information to generate a `credit grading' and to facilitate anonymous loan shopping"); Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333-34 (Fed. Cir. 2012) (holding that a "computer-aided" method for "processing information through a clearinghouse" for car loan applications is patent ineligible).
At step two of the Alice framework, the Board concluded that the claims do not recite an inventive concept. Again, we agree. The use and arrangement of conventional and generic computer components recited in the claims — such as a database, user terminal, and server — do not transform the claim, as a whole, into "significantly more" than a claim to the abstract idea itself. Alice, 134 S.Ct. at 2360; see also In re TLI Commc'ns, 823 F.3d at 615 (holding that "vague, functional descriptions of server components are insufficient to transform the abstract idea into a patent-eligible invention"); Mortg. Grader, 811 F.3d at 1324 (holding no inventive concept where "the claims `add' only generic computer components such as an `inter-face,' `network,' and `database'"). "We have repeatedly held that such invocations of computers and networks that are not even arguably inventive are `insufficient to pass the test of an inventive concept in the application' of an abstract idea." Elec. Power Grp., 830 F.3d at 1355 (quoting buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1353 (Fed. Cir. 2014)).
CAC asserts that "[p]rior to the '807 [p]atent, because computers were unable to perform" the claimed process, "automobile financing was manual, iterative, and laborious." CAC Opening Br. 9. Indeed, the specification explains that the iterative process, described above at step one, "of negotiating financing, especially with high risk borrowers, is labor intensive, difficult, and inefficient." '807 patent, col. 2 ll. 51-53. CAC suggests that the invention solves this problem because it "provides software that allows computers to supplant and enhance" the existing series of manual steps of securing financing — "a task they were previously not configured to perform." CAC Opening Br. 28.
But merely "configur[ing]" generic computers in order to "supplant and enhance" an otherwise abstract manual process is precisely the sort of invention that the Alice Court deemed ineligible for patenting. See Alice, 134 S.Ct. at 2357-59 ("[T]he relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea ... on a generic computer."); see also RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1328 (Fed. Cir. 2017) (explaining that a valid claim may not "tell a user to take an abstract idea and apply it with a
Significantly, the claims do not provide details as to any non-conventional software for enhancing the financing process. See Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1342 (Fed. Cir. 2017) (explaining that "[o]ur law demands more" than claim language that "provides only a result-oriented solution, with insufficient detail for how a computer accomplishes it"); Elec. Power Grp., 830 F.3d at 1354 (explaining that claims are directed to an abstract idea where they do not recite "any particular assertedly inventive technology for performing [conventional] functions").
CAC also argues that the Board's decision is legally defective because the Board did not analyze the claim elements "as an ordered combination" to determine whether they recite an inventive concept. Alice, 134 S.Ct. at 2355. CAC calls our attention to this court's decision BASCOM Global Internet Services., Inc. v. AT & T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), where the court explained that "an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces." Id. at 1350.
Contrary to CAC's suggestion, the Board properly considered the claimed elements as an ordered combination and determined that the claims did not recite an inventive concept. See, e.g., J.A. 23 ("We... conclude that the generic computer components recited in claim 10 do not transform the nature of the claim such that claim 10, as a whole, recites an inventive concept." (emphasis added)); J.A. 24 ("[C]laim 10 simply limits the method of claim 1 to a particular technological environment.... Claims 14 and 25 fare no better."). Tellingly, CAC does not clearly identify any particular inventive concept in the ordered combination that it alleges the Board overlooked. Indeed, we see no inventive concept in these claims.
We conclude that Westlake was not estopped from maintaining this CBM under 35 U.S.C. § 325(e)(1). We also conclude that claims 10-12 and 14-33 of the '807 patent are not directed to patent-eligible subject matter under 35 U.S.C. § 101. Accordingly, we affirm.
AFFIRMED
Costs to Appellee.
Mayer, Circuit Judge, dissenting-in-part.
While I agree that the challenged claims are patent ineligible under 35 U.S.C. § 101, I respectfully dissent from the court's determination that we have jurisdiction to review a decision by the Patent Trial and Appeal Board ("board") to deny a motion to terminate a post-grant review proceeding as barred by 35 U.S.C. § 325(e)(1). The board's application of section 325(e)(1)'s estoppel provision in determining whether to institute or terminate review is "final and nonappealable," 35 U.S.C. § 324(e), and thus falls well beyond the reach of our appellate authority.
In interpreting 35 U.S.C. § 314(d) which, like 35 U.S.C. § 324(e), provides
We confronted an analogous situation in Husky. There, the board rejected the patent holder's argument that assignor estoppel barred institution of inter partes review. Id. at 1240-41. On appeal, we held that we had no jurisdiction to review whether the board correctly resolved the assignor estoppel question, explaining that the equitable doctrine of assignor estoppel is tied to the interpretation of 35 U.S.C. § 311(a), a statute which is closely related to the board's institution decision. Husky, 838 F.3d at 1246. We emphasized, moreover, that assignor estoppel does not impact the board's ultimate authority to declare claims unpatentable, but instead only prevents particular petitioners from challenging a patent. Id. at 1246-47. Because "any question concerning assignor estoppel necessarily implicates who may petition for review ... such a question falls outside of the narrow exceptions to the otherwise broad ban on our review of the decision whether to institute." Id. at 1247; see also Achates Reference Publ'g, Inc. v. Apple Inc., 803 F.3d 652, 657 (Fed. Cir. 2015) (holding that this court may not review the board's application of the 35 U.S.C. § 315(b) time bar because that "bar does not impact the Board's authority to invalidate a patent claim — it only bars particular petitioners from challenging the claim" (emphasis added)).
Just as we had no jurisdiction to review the board's application of assignor estoppel in Husky, we are likewise precluded from reviewing the board's application of the petitioner-specific estoppel provision at issue here. Like assignor estoppel, section 325(e)(1) estoppel only "implicates who may petition for review." Husky, 838 F.3d at 1247. To hold that this court can review the board's application of section 325(e)(1) estoppel is an unwarranted jurisdictional extension, inconsistent with the broad and unequivocal statutory bar on review of institution decisions.