Case: 19-1066    Document: 47     Page: 1   Filed: 05/22/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

     ODYSSEY LOGISTICS AND TECHNOLOGY
               CORPORATION,
               Plaintiff-Appellant

                             v.

     ANDREI IANCU, UNDER SECRETARY OF
   COMMERCE FOR INTELLECTUAL PROPERTY
    AND DIRECTOR OF THE UNITED STATES
      PATENT AND TRADEMARK OFFICE,
               Defendant-Appellee
             ______________________

                        2019-1066
                  ______________________

    Appeal from the United States District Court for the
 Eastern District of Virginia in No. 1:18-cv-00079-AJT-JFA,
 Judge Anthony J. Trenga.
                   ______________________

                  Decided: May 22, 2020
                  ______________________

    ROBERT BAUER, Bauer Law Offices, Pittsburgh, PA, ar-
 gued for plaintiff-appellant. Also represented by CHARLES
 MOLSTER, III, Law Offices of Charles B. Molster, III PLLC,
 Great Falls, VA.

    PETER JOHN SAWERT, Office of the Solicitor, United
 States Patent and Trademark Office, Alexandria, VA, ar-
 gued for defendant-appellee. Also represented by THOMAS
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 2                      ODYSSEY LOGISTICS AND TECH. v. IANCU




 W. KRAUSE; R. TRENT MCCOTTER, G. ZACHARY
 TERWILLIGER, Office of the United States Attorney, United
 States Department of Justice, Alexandria, VA.
                 ______________________

     Before LOURIE, REYNA, and HUGHES, Circuit Judges.
 HUGHES, Circuit Judge.
     This case presents three Administrative Procedure Act
 challenges involving the United States Patent and Trade-
 mark Office. Odyssey challenges procedural actions taken
 by the PTO in two patent applications and makes a third
 facial challenge to certain PTO procedural rules governing
 practice before the Patent Trial and Appeal Board in ex
 parte appeals. The Eastern District of Virginia dismissed
 the former two challenges for lack of subject matter juris-
 diction because the PTO had not taken final agency action.
 It dismissed the latter challenge as barred by 28 U.S.C.
 § 2401, the six-year statute of limitations for challenges to
 agency action. Because we agree with the district court
 that the first two challenges concern non-final agency ac-
 tion and the latter challenge is barred by § 2401, we affirm.
                               I
     Odyssey Logistics and Technology Corporation (Odys-
 sey), disapproving of certain decisions of the PTO, chal-
 lenged the legality of those PTO decisions in district court
 under the Administrative Procedure Act (APA). The first
 challenge (Count I) relates to the prosecution of U.S. Pa-
 tent Application No. 11/005,678. The second challenge
 (Count II) relates to the prosecution of U.S. Patent Appli-
 cation No. 11/465,603. The third challenge (Count III) con-
 tests whether amendments to the Rules of Practice Before
 the Board of Patent Appeals and Interferences in Ex Parte
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 Appeals conform with the PTO’s statutory authority. 1 See
 Rules of Practice Before the Board of Patent Appeals and
 Interferences in Ex Parte Appeals, 76 Fed. Reg. 72,270
 (Nov. 22, 2011) (codified at 37 C.F.R. pts. 1 and 41). We
 recount the factual and procedural history of each chal-
 lenge in turn.
                              A
     Count I arises from the examination of Odyssey’s
 ’678 patent application. Odyssey filed the ’678 application
 in 2004. After a number of procedural disputes over the
 examination of the application, including multiple appeals
 to this Court, see In re Riggs, 457 F. App’x 923 (Fed. Cir.
 2011); Odyssey Logistics & Tech. Corp. v. Kappos, No. 11-
 1441 (Fed. Cir. filed June 20, 2011) (voluntarily dismissed),
 the Patent Trial and Appeal Board heard Odyssey’s appeal
 of the examiner’s rejections in the ’678 application. On
 April 29, 2016, the Board reversed the examiner’s rejec-
 tions. J.A. 1225, 1229–30. The PTO did not, however, is-
 sue Odyssey a notice of allowance for the ’678 application.
     Instead, on September 23, 2016, the Technology Center
 Director issued what Odyssey refers to as the “examiner’s
 request for rehearing.” 2 Appellant’s Br. at 14; J.A. 1267.
 The rehearing request argued that the Board had applied


     1   These rules refer to the Board of Patent Appeals
 and Interferences because they were promulgated before
 the America Invents Act replaced the BPAI with the Patent
 Trial and Appeal Board on September 16, 2012. See Leahy-
 Smith America Invents Act, Pub. L. No. 112-29, §§ 7, 35,
 125 Stat. 284, 313, 341 (Sept. 16, 2011) (codified as
 amended at 35 U.S.C. § 6). Because the relevant events
 here occurred after that date, we refer to the deciding ad-
 ministrative body as the Patent Trial and Appeal Board.
     2   The PTO uses “rehearing” to describe “reconsider-
 ation.” 37 C.F.R. § 41.2.
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 4                       ODYSSEY LOGISTICS AND TECH. v. IANCU




 an incorrect version of 35 U.S.C. § 102(e) to determine
 whether a reference qualified as prior art and also re-
 quested clarification as to which claims the Board was re-
 versing. J.A. 1269–72. Odyssey was given the opportunity
 to respond to the rehearing request both before and after
 the Board received it. See J.A. 1282, 1371. On both occa-
 sions, Odyssey did not address the merits of the examiner’s
 arguments, instead objecting to the procedural propriety of
 the rehearing request. See

filed petitions
 objecting to the rehearing procedure, and requests for re-
 consideration when those petitions were dismissed. J.A.
 1326, 1334, 1357, 1360, 1362. Odyssey eventually made
 some arguments on the merits “under protest,” J.A. 1370,
 but instead of waiting for the Board’s decision on these ar-
 guments, Odyssey filed this challenge to the request for re-
 hearing in the Eastern District of Virginia.
                                B
     Count II arises from the prosecution of Odyssey’s ’603
 application. Odyssey filed the ’603 application in 2006. Af-
 ter a final rejection of all claims of the ’603 application, Od-
 yssey appealed the examiner’s rejections and, at the same
 time, filed a petition demanding that the examiner make
 certain evidence part of the written record and supplement
 his responses to Odyssey’s arguments with additional ex-
 planation. J.A. 1805, 1816; J.A. 1858. The examiner re-
 sponded, declining to include the additional evidence but
 further explaining his disagreement with Odyssey’s argu-
 ments for allowance. Because the examiner had re-
 sponded, the Technology Center Director dismissed the
 petition as moot.
     With this petition resolved, the examiner filed his an-
 swer to Odyssey’s appeal brief. The examiner’s answer did
 not designate any new grounds of rejection, see J.A. 1876,
 but Odyssey believed that the answer included new
 grounds, so Odyssey filed a new petition, requesting that
 the Technology Center Director designate certain portions
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 ODYSSEY LOGISTICS AND TECH. v. IANCU                       5



 of the examiner’s answer as new grounds of rejection. J.A.
 1894. The Technology Center Director dismissed this peti-
 tion on the merits, finding that the portions of the answer
 with which Odyssey took issue did not set forth new
 grounds of rejection. J.A. 1910–13. Rather than filing a
 brief replying to the examiner’s answer and waiting to see
 if the Board would strike certain portions of its reply as
 improper, Odyssey challenged the dismissal of the petition
 in the Eastern District of Virginia.
                              C
      Count III arises from the PTO’s 2011 amendments to
 its rules of practice in ex parte appeals. See 76 Fed. Reg.
 72,270. The PTO gave four purposes for these amend-
 ments: (1) “to ensure that the Board has adequate infor-
 mation to decide ex parte appeals on the merits, while not
 unduly burdening appellants or examiners with unneces-
 sary briefing requirements”; (2) “to eliminate any gap in
 time from the end of briefing to the commencement of the
 Board’s jurisdiction”; (3) “to clarify and simplify petitions
 practice on appeal”; and (4) “to reduce confusion as to which
 claims are on appeal.”

The PTO first pub-
 lished the amendments as a notice of proposed rulemaking
 in the Federal Register on Nov. 15, 2010. Rules of Practice
 Before the Board of Patent Appeals and Interferences in Ex
 Parte Appeals, 75 Fed. Reg. 69,828 (proposed Nov. 15,
 2010). The final rules were published on Nov. 22, 2011.
 See 76 Fed. Reg. 72,270. The amendments apply to all ex
 parte appeals filed on or after January 23, 2012.

challenged the legality of these amendments, framing
 this Count as a “facial” challenge to the 2011 amendments.
 See J.A. 31–32, 45.
                              II
     In the district court, the PTO moved to dismiss all
 three counts. It argued that the district court lacked sub-
 ject matter jurisdiction for the first two counts, and that
 the third count was barred by the statute of limitations.
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 6                      ODYSSEY LOGISTICS AND TECH. v. IANCU




 Odyssey opposed the dismissal of Counts I and III. Odys-
 sey conceded that Count II should be dismissed but urged
 that it should be dismissed as moot under this Court’s in-
 tervening decision in In re Durance, 

(Fed. Cir.
 2018), rather than for lack of subject matter jurisdiction.
 See J.A. 1986.
      The district court agreed with the PTO and dismissed
 all three counts. The court dismissed the first two counts
 because Odyssey was challenging actions not yet final be-
 fore the Board; the Board could provide Odyssey with an
 adequate remedy, and if not, Odyssey had statutory reme-
 dies for appeal under 35 U.S.C. §§ 141 or 145. The court
 held alternatively that it lacked a final agency action that
 would provide jurisdiction under § 704 of the APA. The
 court did not address mootness, noting that doing so would
 require it to “rule substantively on whether the recent de-
 cision in the Federal Circuit in the Durance case” applied
 to Count II. J.A. 1996.
      The district court dismissed Count III, holding that
 28 U.S.C. § 2401 barred the claims. J.A. 1997. The court
 held that Hire Order Ltd. v. Marianos, 

, 170
 (4th Cir. 2012), requires the statute of limitations for a fa-
 cial APA challenge to run from the date the regulations
 were published. Because the amended ex parte appeal reg-
 ulations were published on November 22, 2011, and the
 complaint was filed on January 23, 2018 (six years after
 the effective date rather than the publication date), the
 statute of limitations had run. J.A. 1997. The district court
 held that, even if construed as an as-applied challenge, it
 lacked subject matter jurisdiction to decide the challenge
 because, without final agency action, the challenge could
 still be raised in the ongoing Board proceeding.
     Odyssey timely appealed. We have jurisdiction under
 28 U.S.C. § 1295(a)(1).
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                              III
      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.”
 Madey v. Duke Univ., 

, 1358 (Fed. Cir. 2002).
 APA claims against the PTO “raise[] a substantial question
 of patent law.” Exela Pharma Scis., LLC v. Lee, 

, 1352 (Fed. Cir. 2015). We “review[] de novo the dis-
 trict court’s dismissal of [a plaintiff’s] APA claims against
 the PTO for lack of subject matter jurisdiction.” Pregis
 Corp. v. Kappos, 

, 1354 (Fed. Cir. 2012). As
 to procedural questions not relating to patent law, the
 Fourth Circuit “review[s] the district court’s grant of a mo-
 tion to dismiss de novo, focusing only on the legal suffi-
 ciency of the complaint.” McCauley v. Home Loan Inv.
 Bank, F.S.B., 

, 554 (4th Cir. 2013).
                              A
     We first address whether Odyssey satisfied the APA’s
 finality requirement, see 5 U.S.C. § 704, for judicial review
 of Count I, Odyssey’s challenge to the Examiner’s Request
 for Rehearing in the ’678 appeal. On appeal, Odyssey ar-
 gues that the Board’s reversal of the examiner’s rejections
 in the ’678 appeal was a final agency action, and the re-
 hearing proceedings are an ultra vires action by the PTO.
 Odyssey characterizes the rehearing as a second Board pro-
 ceeding and urges us to consider the Board’s rehearing as
 an “attempted end-[run] around the inability of the PTO”
 to directly appeal the Board’s decision. Appellant’s Br. 31.
 We disagree.
     In the context of the APA, “an action is final if it both
 (1) mark[s] the consummation of the agency’s decisionmak-
 ing process and (2) is one by which rights or obligations
 have been determined, or from which legal consequences
 will flow.” Smith v. Berryhill, 

, 1775–76
 (2019) (internal quotations omitted) (first alteration in
 original). Until the Board issues its rehearing decision, the
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 8                      ODYSSEY LOGISTICS AND TECH. v. IANCU




 PTO has not consummated its decision-making process and
 Odyssey’s rights and obligations in the ’678 patent have
 not been determined. Without such final action from the
 PTO, the APA does not entitle Odyssey to judicial review.
      The rehearing process here is ordinary agency action
 in accordance with the PTO’s Manual of Patent Examining
 Procedure. See M.P.E.P. 1214.04. 3 During a rehearing, the
 Board continues to consider the validity of an application’s
 claims. Although it found the claims allowable during the
 ’678 application’s appeal, the Board may reconsider its de-
 cision when the examiner requests rehearing.

 In re Alappat, 

, 1531 (Fed. Cir. 1994), abro-
 gated on other grounds by In re Bilski, 

(Fed.
 Cir. 2008) (allowing the Director to designate members of
 the Board to rehear a Board decision after the examiner
 requested rehearing under MPEP 1204.04); Application of
 Schmidt, 

, 641 (C.C.P.A. 1967) (“While re-
 quests for reconsideration by examiners are rare, it has
 been the settled practice to entertain them . . . .”). Under
 the APA, “[t]he timely filing of a motion to reconsider ren-
 ders the underlying order nonfinal for purposes of judicial
 review.” Stone v. I.N.S., 

, 392 (1995). The



     3   Under MPEP 1214.04, “[t]he examiner may re-
 quest rehearing of the Board decision. Such a request
 should normally be made within 2 months of the return of
 the application to the [Technology Center] . . . .” Calling
 the request the “examiner’s” is somewhat of a misnomer:
 “All requests by the examiner to the Board for rehearing of
 a decision must be approved by the [Technology Center] . . .
 Director and must also be forwarded to the Office of the
 Deputy Commissioner for Patent Examination Policy for
 approval before mailing.”

is entered in the
 electronic file and “mailed or given to the” applicant, who
 has two months to reply before the request is forwarded to
 the Board. See

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 reconsideration process is the last stop on the PTO’s path
 to a final disposition, after which, if the Board does reverse
 itself, Odyssey will have an “adequate remedy in court” by
 appealing the Board’s decision under 35 U.S.C. §§ 141 or
 145. See 37 C.F.R. § 90.3(b)(1) (explaining that the appli-
 cant’s time to challenge a Board decision in an appeal or
 civil action starts anew after the Board’s action on rehear-
 ing); cf. Automated Merch. Sys., Inc. v. Lee, 

,
 1381 (Fed. Cir. 2015) (finding no final agency action in a
 suit challenging the PTO’s refusal to terminate reexamina-
 tion proceedings despite the request of the patent owner).
      In Odyssey’s view, MPEP 1214.04 cannot apply be-
 cause the examiner’s request for rehearing did not occur
 within 63 days, and, according to Odyssey, the Board loses
 jurisdiction 63 days after it issues its final decision, and
 these regulations must supersede PTO procedural guide-
 lines from the MPEP. Appellant’s Reply Br. 15–17; (citing
 37 C.F.R. §§ 41.52, 41.35(b)(2)). See also 37 C.F.R. § 90.3
 (requiring than an applicant appeal a Board decision under
 § 141 or § 145 within 63 days). But neither § 41.52 nor
 § 41.35(b)(2) constrict the Patent Office’s time to request
 rehearing; they instead bind the patent applicant. E.g., 37
 C.F.R. § 41.52(a)(1) (“Appellant may file a single request
 for rehearing within two months of the date of the original
 decision of the Board.” (emphasis added)). Instead, the reg-
 ulatory context suggests that the Director may override the
 Board’s “jurisdiction” so long as he does not circumvent
 eventual Board review. See 37 C.F.R. § 41.35 (“Prior to the
 entry of a decision on the appeal by the Board, the Director
 may sua sponte order the proceeding remanded to the ex-
 aminer.” (internal cross-reference omitted)); Hyatt v. U.S.
 Pat. & Trademark Off., 

, 1375 (Fed. Cir.
 2018) (“Allowing examiners to reopen prosecution does not
 deprive applicants of their right to appeal final examiner
 rejections because reopening prosecution cannot circum-
 vent PTAB review.”), cert. denied sub nom. Hyatt v. Iancu,
 

(2019).
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 10                     ODYSSEY LOGISTICS AND TECH. v. IANCU




     If the Director may divest the Board of its authority
 over an appeal so long as he does not circumvent the appli-
 cant’s statutory right to appeal, the Director logically also
 may grant the Board authority to reconsider its appeal. Is-
 suing a request for rehearing under MPEP 1214.04 simply
 makes use of the Director’s authority over the examination
 process under 35 U.S.C. §§ 131, 132. See M.P.E.P. 1002.02
 (delegating the Director’s authority to approve “[r]equests
 from the examiner for . . . rehearing of a [Board] decision”
 to the Deputy Commissioner for Patents).
     In some circumstances, the PTO’s delay in making a
 request for rehearing, although technically conforming
 with the statute and regulation, may cause unfair preju-
 dice to the applicant of such gravity that an applicant may
 seek otherwise-premature recourse in the courts. 

(“[T]he APA offers a remedy for [abusive
 use of agency rules to delay proceedings] by enabling re-
 viewing courts to compel agency actions unlawfully with-
 held or unreasonably delayed without adequate reason or
 justification.”) But nothing indicates that such abusive ac-
 tion took place here. If Odyssey did encounter any unfair
 prejudice, it may raise the issue after the Board has
 reached a final decision. And if Odyssey prevails before the
 Board, it can seek appropriate Patent Term Adjustment to
 compensate for any delay. See 35 U.S.C. § 154(b)(4).
                              B
     We next address whether Odyssey met the final agency
 action requirement for Count II, Odyssey’s challenge to the
 PTO’s dismissal of its petition ’603 application, or whether
 Count II should have been instead dismissed as moot under
 Durance. We affirm the district court’s resolution of
 Count II. The dismissal of Odyssey’s petition to designate
 new grounds is non-final agency action because the dismis-
 sal did not determine any rights or obligations or result in
 any legal consequences. Until the Board refuses to con-
 sider arguments made in Odyssey’s reply brief for
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 ODYSSEY LOGISTICS AND TECH. v. IANCU                      11



 exceeding the permissible scope of the brief under
 37 C.F.R. § 41.41, the denial of Odyssey’s petition to desig-
 nate new grounds has not determined any rights or re-
 sulted in any legal consequences. 4 The district court was
 therefore correct to dismiss Count II for lack of finality.
      The district court was not obligated to dispose of the
 case on the more uncertain mootness ground—or even con-
 sider it. “[A] federal court has leeway to choose among
 threshold grounds for denying audience to a case on the
 merits.” Sinochem Int’l Co. v. Malaysia Int’l Shipping
 Corp., 

, 431 (2007) (internal quotation marks
 omitted); see Long Term Care Partners, LLC v. United
 States, 

, 233 (4th Cir. 2008) (upholding the dis-
 trict court’s dismissal of a case on APA finality grounds
 without reaching a “difficult to resolve” standing issue).
 The district court did not err by “tak[ing] the less burden-
 some course.” 

.
                              C
     Finally, we turn to whether the district court properly
 dismissed Odyssey’s facial challenge to the PTO’s 2011
 ex parte appeal amendments because the statute of limita-
 tions had run. Odyssey argues that the statute of limita-
 tions governing facial challenges of agency regulations



     4   Although the district court appropriately declined
 to reach how Durance may or may not apply to the ’603
 appeal, Durance is instructive in showing that other liti-
 gants understood the correct process to raise an APA chal-
 lenge to the PTO’s failure to designate new grounds of
 rejection. In that case, the appellants submitted a reply
 brief containing the arguments they wanted to make,
 waited for the final decision of the Board, requested rehear-
 ing, and only then turned to the courts for judicial review
 of the agency action. See In re Durance, 

, 999–
 1000 (Fed. Cir. 2018).
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 12                      ODYSSEY LOGISTICS AND TECH. v. IANCU




 under 28 U.S.C. § 2401 starts on the effective date of the
 regulations, not the published date. Odyssey urges us to
 ignore as dictum the Fourth Circuit’s statement to the con-
 trary in Hire 

, and to apply Premin-
 ger v. Sec’y of Veterans Affairs, 

, 1307
 (Fed. Cir. 2008), which, in its view, suggests that the effec-
 tive date provides the correct rule. Appellant’s Br. 35–36;
 Appellant’s Reply Br. 24–27. Odyssey argues that 

, confirms this conclusion because it makes
 a substantive facial challenge to the rules’ statutory com-
 pliance and therefore, under Hyatt, “the right of action ac-
 crued from the first adverse application of the amended
 rules against Odyssey, which could not have been any ear-
 lier than the effective date of the amended rules.” Appel-
 lant’s Br. 38. We disagree with Odyssey on all fronts.
     The district court’s decision is unquestionably correct
 under Hire Order. Odyssey characterized Count III as a
 facial challenge in its amended complaint, J.A. 45, and re-
 quested a remedy that would go beyond any applications of
 the contested rules to its appeals. J.A. 48. Odyssey does
 not retreat from that characterization before this Court.
 See Appellant’s Br. 34, 38; Appellant’s Reply Br. 27. Under
 Hire Order, for “a facial challenge to an agency ruling[,] . . .
 the limitations period begins to run when the agency pub-
 lishes the regulation.” Hire 

(inter-
 nal quotation marks omitted). The challenged rules were
 published in the Federal Register on November 22, 2011;
 Odyssey filed its facial challenge on January 23, 2018,
 more than six years later. J.A. 1997. Count III is therefore
 barred by 28 U.S.C. § 2401.
     We need not decide whether this rule is a dictum, be-
 cause the other authority Odyssey cites leads to the same
 conclusion. Hyatt definitively sets out the rule applied by
 this Court, which accords with Hire Order for facial,
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 ODYSSEY LOGISTICS AND TECH. v. IANCU                        13



 substantive challenges like that raised here. 5 Under Hy-
 att, the statute of limitations for a challenge to the PTO’s
 statutory authority to promulgate a regulation begins run-
 ning “either when the agency makes its initial decision or
 at the time of an adverse application of the decision against
 the plaintiff, whichever comes later.” 

. The nature of Odyssey’s challenge, being a facial
 challenge, means that it does not assert any adverse appli-
 cations or seek relief in any specific applications. Cf. Educ.
 Media Co. at Va. Tech, Inc. v. Insley, 

, 298 n.5
 (4th Cir. 2013) (“[A] court considering a facial challenge is
 to assess the constitutionality of the challenged law with-
 out regard to its impact on the plaintiff asserting the facial
 challenge. In contrast, an as-applied challenge is based on
 a developed factual record and the application of a statute
 to a specific person[.]” (internal quotation marks and cita-
 tion omitted; second alteration original)).




     5    Numerous courts of appeal have held similarly to
 Hire Order and Hyatt that the statute of limitations for a
 substantive facial challenge to a regulation runs from the
 date of publication. See Rodriguez v. United States, 

, 82 (1st Cir. 2017); Dunn–McCampbell Royalty In-
 terest, Inc. v. Nat’l Park Serv., 

, 1287 (5th Cir.
 1997); Wind River Min. Corp. v. United States, 

, 715 (9th Cir. 1991); Pub. Citizen v. Nuclear Reg.
 Comm’n, 

, 152 (D.C. Cir. 1990); see also Co-
 manche Nation of Oklahoma v. Zinke, 754 F. App’x 768,
 772 (10th Cir. 2018) (explaining that “[p]ublication in the
 federal register generally starts the limitations period for
 facial challenges” of a regulation and noting—based on
 Wind River, from which Hyatt also drew reasoning—that
 timing of the statute of limitations based on an “adverse
 application” of a regulation is inapplicable to a substantive
 facial challenge), cert. denied, 

(2019).
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 14                     ODYSSEY LOGISTICS AND TECH. v. IANCU




      Without any adverse applications, the statute of limi-
 tations must accrue “when the agency makes its initial de-
 cision.” 

. That decision is
 coterminous with the final agency action, which occurs
 when the agency promulgates the final regulation. See
 Franklin v. Massachusetts, 

, 797 (1992) (“The
 core question [in determining whether an agency action is
 final] is whether the agency has completed its deci-
 sionmaking process, and whether the result of that process
 is one that will directly affect the parties.”). In no case
 would the agency’s “initial decision” regarding a regulation
 take place on the effective date of the regulation.
     Hyatt also forecloses Odyssey’s arguments about Pre-
 minger. Hyatt explains that Preminger involved a proce-
 dural challenge, which alone distinguishes it from this
 case. 

(citing 

). In addition, Hyatt relies on Preminger for the rule
 that the relevant “final agency action” starting accrual of
 the statute of limitations for a procedural challenge is the
 promulgation of a regulation. Id. (citing 

).
     Applying either Hire Order and Fourth Circuit law or
 Hyatt and Federal Circuit law, 28 U.S.C. § 2401 bars Count
 III. We therefore affirm the district court’s dismissal of
 Count III because the statute of limitations to challenge
 the ex parte appeal rules had run before Odyssey filed suit.
                              IV
     We have considered the parties’ other arguments and
 find them unpersuasive. Odyssey brought its two chal-
 lenges to the PTO’s actions during its ex parte appeals too
 early and brought its challenge to the PTO’s ex parte appeal
 regulations too late. The district court’s dismissal of the
 former two challenges for lack of subject matter jurisdic-
 tion and of the latter challenge for failure to state a claim
 is
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 ODYSSEY LOGISTICS AND TECH. v. IANCU                   15



                         AFFIRMED