II
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`117TH CONGRESS
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`1ST SESSION S. 2891
`
`To amend title 35, United States Code, to address matters relating to the
`Patent Trial and Appeal Board of the United States Patent and Trade-
`mark Office, and for other purposes.
`
`IN THE SENATE OF THE UNITED STATES
`
`SEPTEMBER 29, 2021
`Mr. LEAHY (for himself and Mr. CORNYN) introduced the following bill; which
`was read twice and referred to the Committee on the Judiciary
`
`A BILL
`To amend title 35, United States Code, to address matters
`relating to the Patent Trial and Appeal Board of the
`United States Patent and Trademark Office, and for
`other purposes.
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`Be it enacted by the Senate and House of Representa-
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`tives of the United States of America in Congress assembled,
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`SECTION 1. SHORT TITLE.
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`This Act may be cited as the ‘‘Restoring the America
`
`Invents Act’’.
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`SEC. 2. PATENTS.
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`Title 35, United States Code, is amended—
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`(1) in section 6—
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`APPLE 1030
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`1
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`
`
`117TH CONGRESS
`
`1ST SESSION S. 2891
`
`To amend title 35, United States Code, to address matters relating to the
`Patent Trial and Appeal Board of the United States Patent and Trade-
`mark Office, and for other purposes.
`
`IN THE SENATE OF THE UNITED STATES
`
`SEPTEMBER 29, 2021
`Mr. LEAHY (for himself and Mr. CORNYN) introduced the following bill; which
`was read twice and referred to the Committee on the Judiciary
`
`A BILL
`To amend title 35, United States Code, to address matters
`relating to the Patent Trial and Appeal Board of the
`United States Patent and Trademark Office, and for
`other purposes.
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`Be it enacted by the Senate and House of Representa-
`
`tives of the United States of America in Congress assembled,
`
`SECTION 1. SHORT TITLE.
`
`This Act may be cited as the ‘‘Restoring the America
`
`Invents Act’’.
`
`SEC. 2. PATENTS.
`
`Title 35, United States Code, is amended—
`
`(1) in section 6—
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`APPLE 1030
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`(A) in subsection (c)—
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`(i) in the second sentence, by striking
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`‘‘Only the’’ and inserting ‘‘The’’; and
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`(ii) by adding at the end the fol-
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`lowing: ‘‘After the constitution of a panel
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`of the Patent Trial and Appeal Board
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`under this subsection has been made pub-
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`lic, any changes to the constitution of that
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`panel shall be noted in the record.’’;
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`(B) by redesignating subsection (d) as sub-
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`section (e);
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`(C) by inserting after subsection (c) the
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`following:
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`‘‘(d) REVIEW BY DIRECTOR.—
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`‘‘(1) IN GENERAL.—With respect to a final de-
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`cision of the Patent Trial and Appeal Board—
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`‘‘(A) the Director may, on the initiative of
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`the Director, review, and modify or set aside,
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`the decision; and
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`‘‘(B) if the decision is issued under section
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`318 or 328, a party to the applicable inter
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`partes or post-grant review may request that
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`the Director review, and modify or set aside,
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`the decision.
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`‘‘(2) REQUIREMENT.—Any review by the Direc-
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`tor under paragraph (1) shall be issued in a sepa-
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`rate written opinion that—
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`‘‘(A) is made part of the public record; and
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`‘‘(B) sets forth the reasons for the review,
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`modification, or setting aside of the final deci-
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`sion of the Patent Trial and Appeal Board.
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`‘‘(3) TIMELINE AND BASES FOR REVIEW.—Not
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`later than 18 months after the date of enactment of
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`the Restoring the America Invents Act, the Director
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`shall promulgate rules addressing the following
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`issues:
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`‘‘(A) With respect to review of a decision
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`on the initiative of the Director under para-
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`graph (1)(A)—
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`‘‘(i) the timeline under which the Di-
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`rector may review the decision, which shall
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`be consistent with the requirements under
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`section 318(e) or 328(e), if applicable; and
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`‘‘(ii) the bases on which the Director
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`may review the decision.
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`‘‘(B) With respect to a request by a party
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`under paragraph (1)(B)—
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`‘‘(i) the timeline for submitting such a
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`request;
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`‘‘(ii) the content that the party is re-
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`quired to include in such a request;
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`‘‘(iii) the bases on which the party
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`may submit such a request; and
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`‘‘(iv) the timeline for any response or
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`reply to such a request such that the re-
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`quest can be decided within the deadline
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`imposed under section 318(e) or 328(e), as
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`applicable.
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`‘‘(4) RULE OF CONSTRUCTION.—For the pur-
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`poses of an appeal permitted under section 141, any
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`decision on review issued by the Director under this
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`subsection shall be deemed a final decision of the
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`Patent Trial and Appeal Board.’’; and
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`(D) in subsection (e), as so redesignated—
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`(i) in the first sentence—
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`(I) by striking
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`‘‘of this sub-
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`section’’ and inserting ‘‘of the Restor-
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`ing the America Invents Act’’;
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`(II) by inserting ‘‘or the Sec-
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`retary’’ after ‘‘appointment by the Di-
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`rector’’; and
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`(III) by inserting ‘‘or the Sec-
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`retary, as applicable,’’ after ‘‘on which
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`the Director’’; and
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`(ii) in the second sentence—
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`(I) by inserting ‘‘, or, before the
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`date of enactment of the Restoring
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`the America Invents Act, having per-
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`formed duties no longer performed by
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`administrative patent judges,’’ after
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`‘‘by the Director’’; and
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`(II) by striking ‘‘that the admin-
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`istrative patent judge so appointed’’
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`and inserting ‘‘that the applicable ad-
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`ministrative patent judge’’;
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`(2) in section 302, in the first sentence, by in-
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`serting ‘‘, including a governmental entity,’’ after ‘‘A
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`person’’;
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`(3) in chapter 31—
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`(A) in section 311—
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`(i) in subsection (a), in the first sen-
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`tence, by inserting ‘‘, including a govern-
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`mental entity,’’ after ‘‘a person’’; and
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`(ii)
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`in subsection (b), by striking
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`‘‘under section 102’’ and all that follows
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`through the period at the end and insert-
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`ing the following: ‘‘under—
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`‘‘(1) section 102 or 103 and only on the basis
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`of—
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`‘‘(A) prior art consisting of patents or
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`printed publications; or
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`‘‘(B) admissions in the patent specifica-
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`tion, drawings, or claims; or
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`‘‘(2) statutory or obviousness-type double pat-
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`enting on the basis of—
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`‘‘(A) patents or printed publications; or
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`‘‘(B) admissions in the patent specifica-
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`tion, drawings, or claims.’’;
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`(B) in section 314—
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`(i) in subsection (a), by striking ‘‘The
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`Director may not authorize an inter partes
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`review to be instituted unless’’ and insert-
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`ing the following: ‘‘Subject only to the dis-
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`cretion of the Director under section
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`325(d)(4), a petition that meets the re-
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`quirements of this chapter shall be insti-
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`tuted if’’; and
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`(ii) in subsection (d)—
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`(I) by inserting ‘‘or maintain’’
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`after ‘‘to institute’’; and
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`(II) by striking ‘‘section’’ and in-
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`serting ‘‘chapter’’;
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`(C) in section 315—
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`(i) in subsection (a)(1)—
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`(I) by striking ‘‘An inter partes’’
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`and inserting the following:
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`‘‘(A) IN GENERAL.—An inter partes’’; and
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`(II) by adding at the end the fol-
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`lowing:
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`‘‘(B) RULE OF CONSTRUCTION.—Subpara-
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`graph (A) may not be construed to prevent an
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`inter partes review from being instituted if a
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`complaint in a civil action described in that
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`subparagraph has been dismissed without prej-
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`udice.’’;
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`(ii) by striking subsection (b) and in-
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`serting the following:
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`‘‘(b) PATENT OWNER’S ACTION.—
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`‘‘(1) IN GENERAL.—An inter partes review may
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`not be instituted if the petition requesting the pro-
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`ceeding is filed more than 1 year after the date on
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`which the petitioner, real party in interest, or privy
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`of the petitioner is served with a complaint alleging
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`infringement of the patent. The time limitation set
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`forth in the preceding sentence shall be subject to
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`the following limitations:
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`‘‘(A) The time limitation shall not apply—
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`‘‘(i) to a request for joinder under
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`subsection (c); or
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`‘‘(ii) if the complaint is dismissed
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`without prejudice.
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`‘‘(B) If new or amended claims issue from
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`reexamination after the petitioner, real party in
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`interest, or privy of the petitioner is served with
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`the complaint, an inter partes review of those
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`claims may be instituted if the petition request-
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`ing the review is filed not later than 1 year
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`after the date on which the challenged claims
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`are asserted in the action.
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`‘‘(2) REQUEST FOR STAY.—
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`‘‘(A) IN GENERAL.—If a party seeks a stay
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`of a civil action brought under section 281 al-
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`leging infringement of a patent that is also sub-
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`ject to an inter partes review, the court shall
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`decide whether to stay the civil action based on
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`whether—
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`‘‘(i) the outcome of the inter partes
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`review will likely simplify the issues in
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`question in the civil action and streamline
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`the proceedings in the civil action;
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`‘‘(ii) as of the date on which the stay
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`is requested, discovery in the civil action is
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`complete;
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`‘‘(iii) a stay, or the denial thereof,
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`would—
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`‘‘(I) unduly prejudice the non-
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`moving party; or
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`‘‘(II) present a clear tactical ad-
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`vantage for the moving party; and
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`‘‘(iv) a stay, or the denial thereof, will
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`reduce the burden of litigation on the par-
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`ties to the civil action and the court.
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`‘‘(B) REVIEW.—A party may take an im-
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`mediate interlocutory appeal from the decision
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`of a district court of the United States under
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`subparagraph (A). The United States Court of
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`Appeals for the Federal Circuit shall review the
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`district court’s decision to ensure consistent ap-
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`plication of established precedent, and such re-
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`view shall be de novo.’’;
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`(iii) in subsection (c)—
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`(I) by striking ‘‘If the Director’’
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`and inserting the following:
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`‘‘(1) IN GENERAL.—If the Director’’; and
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`(II) by adding at the end the fol-
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`lowing:
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`‘‘(2) ESTOPPEL.—Any person joined as a party
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`to an inter partes review, and any real party in in-
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`terest or privy of such person, shall be estopped
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`under subsection (e) to the same extent as if that
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`person, real party in interest, or privy had been the
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`first petitioner in that inter partes review.’’;
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`(iv) by striking subsection (d) and in-
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`serting the following:
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`‘‘(d) MULTIPLE PROCEEDINGS.—
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`‘‘(1) IN GENERAL.—Notwithstanding sections
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`135(a), 251, and 252, and chapter 30, during the
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`pendency of an inter partes review, if another pro-
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`ceeding or matter involving the patent is before the
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`Office, or if there is a pending application claiming
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`the benefit of a common filing date to the patent
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`under section 120 or 121—
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`‘‘(A) the parties shall notify the Director;
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`and
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`‘‘(B) the Director shall issue a decision de-
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`termining the manner in which the other pro-
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`ceeding or matter may proceed, including pro-
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`viding for stay, transfer, consolidation, or ter-
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`mination of any such proceeding or matter.
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`‘‘(2) NO EXTENSION.—A decision of the Direc-
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`tor under paragraph (1)(B) may not—
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`‘‘(A) extend any statutory deadline under
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`this chapter; or
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`‘‘(B) terminate an inter partes proceeding
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`in favor of an ex parte proceeding.
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`‘‘(3) PRESUMPTION.—For the purposes of this
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`subsection, if the multiple proceedings described in
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`paragraph (1) are of like type and are filed reason-
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`ably close in time, there shall be a rebuttable pre-
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`sumption that the Director shall consolidate the pro-
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`ceedings under that paragraph.’’; and
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`(v) in subsection (e)—
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`(I) in paragraph (1)—
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`(aa) by striking ‘‘The peti-
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`tioner in’’ and inserting the fol-
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`lowing:
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`‘‘(A) ESTOPPEL AGAINST PETITIONER.—
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`The petitioner in’’;
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`(bb) in subparagraph (A), as
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`so designated, by
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`inserting
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`‘‘,
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`after the time for appeal of the
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`decision has expired or any such
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`appeal has terminated,’’ after
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`‘‘may not’’; and
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`(cc) by adding at the end
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`the following:
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`‘‘(B) ESTOPPEL
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`AGAINST
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`PATENT
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`OWNER.—The Office may not issue to a patent
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`owner any claim that is not patentably distinct
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`from a claim that was issued and was subse-
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`quently—
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`‘‘(i) found to be unpatentable; or
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`‘‘(ii) canceled in any proceeding before
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`the Office, including under section 135,
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`251, 253, 301, 311, or 321.’’; and
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`(II) in paragraph (2)—
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`(aa) by inserting ‘‘that the
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`claim is not unpatentable’’ after
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`‘‘section 318(a)’’;
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`(bb) by inserting ‘‘, after the
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`time for appeal of the decision
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`has expired or any such appeal
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`has
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`terminated,’’ after
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`‘‘may
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`not’’; and
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`(cc) by inserting ‘‘or 1498’’
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`after ‘‘section 1338’’;
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`(D) in section 316—
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`(i) in subsection (a)(11), by inserting
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`‘‘or consolidation under section 315(d)’’
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`after ‘‘under section 315(c)’’;
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`(ii) in subsection (c)—
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`(I) by striking ‘‘The Patent’’ and
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`inserting the following:
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`‘‘(1) IN GENERAL.—The Patent’’; and
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`(II) by adding at the end the fol-
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`lowing:
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`‘‘(2) EX PARTE COMMUNICATION.—An officer
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`who has review authority, supervisory authority, or
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`disciplinary authority with respect to an administra-
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`tive patent judge of the Patent Trial and Appeal
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`Board (or a delegate of such an officer), and who is
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`not a member of a panel described in section 6(c),
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`shall refrain from ex parte communication with such
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`a judge who is a member of that panel concerning
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`any pending matter before that panel, except as al-
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`lowed under the Code of Conduct for United States
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`Judges.’’; and
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`(iii) in subsection (e)—
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`(I) by striking ‘‘In an’’ and in-
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`serting the following:
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`‘‘(1) IN GENERAL.—In an’’;
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`(II) in paragraph (1), as so des-
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`ignated, by inserting ‘‘of challenged
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`patent
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`claims’’
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`after
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`‘‘unpatentability’’; and
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`(III) by adding at the end the
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`following:
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`‘‘(2) CLAIM AMENDMENT.—For any substitute
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`claim proposed under subsection (d)—
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`‘‘(A) the patent owner shall have the bur-
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`den of proving patentability, including under
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`sections 101, 102, 103, and 112, by a prepon-
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`derance of the evidence;
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`‘‘(B) the Patent Trial and Appeal Board
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`shall—
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`‘‘(i) examine the substitute claim; or
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`‘‘(ii)
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`notwithstanding
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`subsection
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`(c)(2), refer the substitute claim to the Di-
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`rector, who shall cause an examination of
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`the substitute claim to be made within the
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`time limits for the applicable inter partes
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`review; and
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`‘‘(C) the Director may establish, by regula-
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`tion, fees for examination of the substitute
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`claim in such amounts as the Director deter-
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`mines to be reasonable, taking into consider-
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`ation the aggregate costs of examination.’’;
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`(E) in section 318—
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`(i) in subsection (b), by inserting ‘‘,
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`not later than 60 days after the date on
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`which the parties to the inter partes review
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`have informed the Director that the time
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`for appeal has expired or any appeal has
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`terminated,’’ after ‘‘the Director shall’’;
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`and
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`(ii) by adding at the end the fol-
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`lowing:
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`‘‘(e) REHEARING.—Not later than 120 days after the
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`date on which the Patent Trial and Appeal Board issues
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`a final written decision under subsection (a), the Board
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`or the Director shall finally decide any request for recon-
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`sideration, rehearing, or review that is submitted with re-
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`spect to the decision, except that the Director may, for
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`good cause shown, extend that 120-day period by not more
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`than 60 days.’’; and
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`(F) in section 319—
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`(i) in the first sentence, by striking
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`‘‘A party’’ and inserting the following:
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`‘‘(a) IN GENERAL.—A party’’; and
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`(ii) by adding at the end the fol-
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`lowing:
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`‘‘(b) STANDING.—
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`‘‘(1) INJURY IN FACT.—For the purposes of an
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`appeal described in subsection (a), injury in fact
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`shall be presumed if the party appealing the deci-
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`sion—
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`‘‘(A) reasonably expects that another per-
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`son will assert estoppel against the party under
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`section 315(e) as a result of the final written
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`decision that is the subject of the appeal; or
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`‘‘(B) suffers any other concrete and par-
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`ticularized injury that—
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`‘‘(i) is fairly traceable to the final
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`written decision that is the subject of the
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`appeal; and
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`‘‘(ii) could be redressed through ap-
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`pellate review.
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`‘‘(2) ESTOPPEL.—If a court finds that a party
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`lacks standing to bring an appeal described in sub-
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`section (a) under article III of the Constitution of
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`the United States, that party shall not be estopped
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`under section 315(e) with respect to the underlying
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`inter partes review.’’; and
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`(4) in chapter 32—
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`(A) in section 321(a), by inserting ‘‘, in-
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`cluding a governmental entity,’’ after ‘‘a per-
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`son’’;
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`(B) in section 324—
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`(i) in subsection (a), by striking ‘‘The
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`Director may not authorize a post-grant
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`review to be instituted unless’’ and insert-
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`ing the following: ‘‘Subject only to the dis-
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`cretion of the Director under section
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`325(d)(4), a petition filed under section
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`321 that meets the requirements of this
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`chapter shall be instituted if’’; and
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`(ii) in subsection (e)—
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`(I) by inserting ‘‘or maintain’’
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`after ‘‘to institute’’; and
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`(II) by striking ‘‘section’’ and in-
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`serting ‘‘chapter’’;
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`(C) in section 325—
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`(i) in subsection (a)—
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`(I) in the subsection heading, by
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`striking
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`‘‘INFRINGER’S CIVIL AC-
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`TION’’ and inserting ‘‘CIVIL ACTION’’;
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`and
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`(II) by adding at the end the fol-
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`lowing:
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`‘‘(4) REQUEST FOR STAY.—
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`‘‘(A) IN GENERAL.—If a party seeks a stay
`
`of a civil action brought under section 281 al-
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`leging infringement of a patent that is also sub-
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`ject to a post-grant review, the court shall de-
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`cide whether to stay the civil action based on
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`whether—
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`‘‘(i) the outcome of the post-grant re-
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`view will likely simplify the issues in ques-
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`tion in the civil action and streamline the
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`proceedings in the civil action;
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`‘‘(ii) as of the date on which the stay
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`is requested, discovery in the civil action is
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`complete;
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`‘‘(iii) a stay, or the denial thereof,
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`would—
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`‘‘(I) unduly prejudice the non-
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`moving party; or
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`‘‘(II) present a clear tactical ad-
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`vantage for the moving party; and
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`‘‘(iv) a stay, or the denial thereof, will
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`reduce the burden of litigation on the par-
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`ties to the civil action and the court.
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`‘‘(B) REVIEW.—A party may take an im-
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`mediate interlocutory appeal from the decision
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`of a district court of the United States under
`
`subparagraph (A). The United States Court of
`
`Appeals for the Federal Circuit shall review the
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`district court’s decision to ensure consistent ap-
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`plication of established precedent, and such re-
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`view shall be de novo.’’;
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`(ii) in subsection (c)—
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`(I) by striking ‘‘If more’’ and in-
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`serting the following:
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`‘‘(1) IN GENERAL.—If more’’; and
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`(II) by adding at the end the fol-
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`lowing:
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`‘‘(2) ESTOPPEL.—Any person joined as a party
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`to a post-grant review, and any real party in interest
`
`or privy of such person, shall be estopped under sub-
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`section (e) to the same extent as if that person, real
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`party in interest, or privy had been the first peti-
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`tioner in that post-grant review.’’;
`
`(iii) by striking subsection (d) and in-
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`serting the following:
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`‘‘(d) MULTIPLE PROCEEDINGS.—
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`‘‘(1) IN GENERAL.—Notwithstanding sections
`
`135(a), 251, and 252, and chapter 30, during the
`
`pendency of any post-grant review under this chap-
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`ter, if another proceeding or matter involving the
`
`patent is before the Office, or if there is a pending
`
`application claiming the benefit of a common filing
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`date to the patent under section 120 or 121—
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`‘‘(A) the parties shall notify the Director;
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`and
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`‘‘(B) the Director shall issue a decision de-
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`termining the manner in which the other pro-
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`ceeding or matter may proceed, including pro-
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`viding for stay, transfer, consolidation, or ter-
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`mination of any such proceeding or matter.
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`‘‘(2) NO EXTENSION.—A decision of the Direc-
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`tor under paragraph (1)(B) may not—
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`‘‘(A) extend any statutory deadline under
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`this chapter; or
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`‘‘(B) terminate an inter partes proceeding
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`in favor of an ex parte proceeding.
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`‘‘(3) PRESUMPTION.—For the purposes of this
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`subsection, if the multiple proceedings described in
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`paragraph (1) are of like type and are filed reason-
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`ably close in time, there shall be a rebuttable pre-
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`sumption that the Director shall consolidate the pro-
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`ceedings under that paragraph.
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`‘‘(4) CONSIDERATIONS.—In determining wheth-
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`er to institute or order a proceeding under this chap-
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`ter, chapter 30, or chapter 31, the Director may
`
`take into account whether, and reject the petition or
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`request because, the same or substantially the same
`
`prior art or arguments previously were presented to
`
`the Office.’’; and
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`(iv) in subsection (e)—
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`(I) in paragraph (1)—
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`(aa) by striking ‘‘The peti-
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`tioner in’’ and inserting the fol-
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`lowing:
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`‘‘(A) ESTOPPEL AGAINST PETITIONER.—
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`The petitioner in’’;
`
`(bb) in subparagraph (A), as
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`so designated, by
`
`inserting
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`‘‘,
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`after the time for appeal of the
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`decision has expired or any such
`
`appeal has terminated,’’ after
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`‘‘may not’’; and
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`(cc) by adding at the end
`
`the following:
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`‘‘(B) ESTOPPEL
`
`AGAINST
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`PATENT
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`OWNER.—The Office may not issue to a patent
`
`owner any claim that is not patentably distinct
`
`from a claim that was issued and was subse-
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`quently—
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`‘‘(i) found to be unpatentable; or
`
`‘‘(ii) canceled in any proceeding before
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`the Office, including under section 135,
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`251, 253, 301, 311, or 321.’’; and
`
`(II) in paragraph (2)—
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`(aa) by inserting ‘‘that the
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`claim is not unpatentable’’ after
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`‘‘section 328(a)’’;
`
`(bb) by inserting ‘‘, after the
`
`time for appeal of the decision
`
`has expired or any such appeal
`
`has
`
`terminated,’’ after
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`‘‘may
`
`not’’; and
`
`(cc) by inserting ‘‘or 1498’’
`
`after ‘‘section 1338’’;
`
`(D) in section 326—
`
`(i) in subsection (a)(11), by inserting
`
`‘‘or consolidation under section 325(d)’’
`
`after ‘‘under section 325(c)’’;
`
`(ii) in subsection (c)—
`
`(I) by striking ‘‘The Patent’’ and
`
`inserting the following:
`
`‘‘(1) IN GENERAL.—The Patent’’; and
`
`(II) by adding at the end the fol-
`
`lowing:
`
`‘‘(2) EX PARTE COMMUNICATION.—An officer
`
`who has review authority, supervisory authority, or
`
`disciplinary authority with respect to an administra-
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`tive patent judge of the Patent Trial and Appeal
`
`Board (or a delegate of such an officer), and who is
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`not a member of a panel described in section 6(c),
`
`shall refrain from ex parte communication with such
`
`a judge who is a member of that panel concerning
`
`any pending matter before that panel, except as al-
`
`lowed under the Code of Conduct for United States
`
`Judges.’’; and
`
`(iii) in subsection (e)—
`
`(I) by striking ‘‘In a’’ and insert-
`
`ing the following:
`
`‘‘(1) IN GENERAL.—In a’’;
`
`(II) in paragraph (1), as so des-
`
`ignated, by inserting ‘‘of challenged
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`patent
`
`claims’’
`
`after
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`‘‘unpatentability’’; and
`
`(III) by adding at the end the
`
`following:
`
`‘‘(2) CLAIM AMENDMENT.—For any substitute
`
`claim proposed under subsection (d)—
`
`‘‘(A) the patent owner shall have the bur-
`
`den of proving patentability, including under
`
`sections 101, 102, 103, and 112, by a prepon-
`
`derance of the evidence;
`
`‘‘(B) the Patent Trial and Appeal Board
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`shall—
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`‘‘(i) examine the substitute claim; or
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`notwithstanding
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`‘‘(ii)
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`subsection
`
`(c)(2), refer the substitute claim to the Di-
`
`rector, who shall cause an examination of
`
`the substitute claim to be made within the
`
`time limits for the applicable inter partes
`
`review; and
`
`‘‘(C) the Director may establish, by regula-
`
`tion, fees for examination of the substitute
`
`claim in such amounts as the Director deter-
`
`mines to be reasonable, taking into consider-
`
`ation the aggregate costs of examination.’’;
`
`(E) in section 328—
`
`(i) in subsection (b), by inserting ‘‘not
`
`later than 60 days after the date on which
`
`the parties to the post-grant review have
`
`informed the Director that the time for ap-
`
`peal has expired or any appeal has termi-
`
`nated,’’ after ‘‘the Director shall’’; and
`
`(ii) by adding at the end the fol-
`
`lowing:
`
`‘‘(e) REHEARING.—Not later than 120 days after the
`
`date on which the Patent Trial and Appeal Board issues
`
`a final written decision under subsection (a), the Board
`
`or the Director shall finally decide any request for recon-
`
`sideration, rehearing, or review that is submitted with re-
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`spect to the decision, except that the Director may, for
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`good cause shown, extend that 120-day period by not more
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`than 60 days.’’; and
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`(F) in section 329—
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`(i) in the first sentence, by striking
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`‘‘A party’’ and inserting the following:
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`‘‘(a) IN GENERAL.—A party’’; and
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`(ii) by adding at the end the fol-
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`lowing:
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`‘‘(b) STANDING.—
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`‘‘(1) INJURY IN FACT.—For the purposes of an
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`appeal described in subsection (a), injury in fact
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`shall be presumed if the party appealing the deci-
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`sion—
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`‘‘(A) reasonably expects that another per-
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`son will assert estoppel against the party under
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`section 325(e) as a result of the final written
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`decision that is the subject of the appeal; or
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`‘‘(B) suffers any other concrete and par-
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`ticularized injury that—
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`‘‘(i) is fairly traceable to the final
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`written decision that is the subject of the
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`appeal; and
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`‘‘(ii) could be redressed through ap-
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`pellate review.
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`•S 2891 IS
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`kjohnson on DSK79L0C42PROD with BILLS
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`‘‘(2) ESTOPPEL.—If a court finds that a party
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`lacks standing to bring an appeal described in sub-
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`section (a) under article III of the Constitution of
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`the United States, that party shall not be estopped
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`under section 325(e) with respect to the underlying
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`post-grant review.’’.
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`Æ
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`VerDate Sep 11 2014 05:39 Sep 30, 2021 Jkt 019200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6301 E:\BILLS\S2891.IS S2891
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`kjohnson on DSK79L0C42PROD with BILLS
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