Case: 20-1565 Document: 153 Page: 1 Filed: 02/08/2023
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`CYWEE GROUP LTD.,
`Appellant
`
`v.
`
`GOOGLE LLC, SAMSUNG ELECTRONICS CO.,
`LTD., LG ELECTRONICS INC., HUAWEI DEVICE
`USA, INC., HUAWEI DEVICE CO., LTD., HUAWEI
`TECHNOLOGIES CO., LTD., HUAWEI DEVICE
`(DONGGUAN) CO., LTD., HUAWEI INVESTMENT &
`HOLDING CO., LTD., HUAWEI TECH.
`INVESTMENT CO., LTD., HUAWEI DEVICE (HONG
`KONG) CO., LTD.,
`Appellees
`
`KATHERINE K. VIDAL, UNDER SECRETARY OF
`COMMERCE FOR INTELLECTUAL PROPERTY
`AND DIRECTOR OF THE UNITED STATES
`PATENT AND TRADEMARK OFFICE,
`Intervenor
`______________________
`
`2020-1565, 2020-1567
`______________________
`
`Appeals from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in Nos. IPR2018-
`01257, IPR2018-01258.
`______________________
`
`Decided: February 8, 2023
`______________________
`
`

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`Case: 20-1565 Document: 153 Page: 2 Filed: 02/08/2023
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`CYWEE GROUP LTD. v. GOOGLE LLC
`
`
`JAY P. KESAN, DiMuroGinsberg PC - DGKeyIP Group,
`Tysons Corner, VA, for appellant. Also represented by
`CECIL E. KEY, HENNING SCHMIDT; MICHAEL W. SHORE, The
`Shore Firm, Dallas, TX.
`
` MATTHEW A. SMITH, Smith Baluch LLP, Washington,
`DC, for appellee Google LLC. Also represented by ANDREW
`BALUCH, ELIZABETH LAUGHTON.
`
` NAVEEN MODI, Paul Hastings LLP, Washington, DC,
`for appellee Samsung Electronics Co., Ltd. Also repre-
`sented by CHETAN BANSAL.
`
` ANDREW V. DEVKAR, Morgan Lewis & Bockius LLP, Los
`Angeles, CA, for appellee LG Electronics Inc. Also repre-
`sented by NATALIE A. BENNETT, Washington, DC.
`
` STEVEN MARK GEISZLER, Futurewei Technologies, Inc.,
`Addison, TX, for appellees Huawei Device USA, Inc.,
`Huawei Device Co., Ltd., Huawei Technologies Co., Ltd.,
`Huawei Device (Dongguan) Co., Ltd., Huawei Investment
`& Holding Co., Ltd., Huawei Tech. Investment Co., Ltd.,
`Huawei Device (Hong Kong) Co., Ltd.
`
` MICHAEL S. FORMAN, Office of the Solicitor, United
`States Patent and Trademark Office, Alexandria, VA, for
`intervenor. Also represented by THOMAS W. KRAUSE,
`FARHEENA YASMEEN RASHEED, MEREDITH HOPE
`SCHOENFELD.
`
`______________________
`
`Before PROST, TARANTO, and CHEN, Circuit Judges.
`PROST, Circuit Judge.
`CyWee Group Ltd. (“CyWee”) requested that the Direc-
`tor of the U.S. Patent and Trademark Office (“PTO”) rehear
`two inter partes review (“IPR”) proceedings, each of which
`
`
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`CYWEE GROUP LTD. v. GOOGLE LLC
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`3
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`had resulted in a final written decision of the Patent Trial
`and Appeal Board (“Board”) determining all challenged
`claims unpatentable. CyWee’s request was denied as to
`each IPR. CyWee appeals those denials. We affirm.
`BACKGROUND
`In June 2018, Google LLC (“Google”) filed two petitions
`for IPR challenging certain claims of CyWee’s patents. Cy-
`Wee filed a preliminary response to each petition on Sep-
`tember 14, 2018. On December 11, 2018—within three
`months of CyWee’s preliminary responses—the Board in-
`stituted (for each petition) IPR on all challenged claims.
`After institution, each IPR was joined by other parties. Be-
`cause of those joinders, on December 4, 2019, the Board ex-
`tended its deadline for the final written decisions—a
`deadline that’s typically one year from institution—by one
`month, making the new deadline January 10, 2020. E.g.,
`J.A. 7869–73. On January 9, 2020, the Board issued its
`final written decision in each IPR, determining all respec-
`tive challenged claims unpatentable for obviousness.
`CyWee appealed both Board decisions to this court in
`March 2020, and we consolidated the appeals. In addition
`to challenging the merits of the Board’s unpatentability de-
`terminations, CyWee challenged the appointment of Board
`administrative patent judges (“APJs”) as unconstitutional
`in view of the Appointments Clause, U.S. CONST. art. II,
`§ 2, cl. 2. In a March 2021 decision, we affirmed. We re-
`jected CyWee’s Appointment Clause challenge as fore-
`closed by our then-governing precedent, including Arthrex,
`Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir.
`2019). See CyWee Grp. Ltd. v. Google LLC, 847 F. App’x
`910, 913 (Fed. Cir. 2021). We also rejected or otherwise
`disposed of CyWee’s other challenges. Id. at 912–14. Cy-
`Wee petitioned for panel and en banc rehearing. After
`denying both, this court issued its mandate on June 10,
`2021.
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`CYWEE GROUP LTD. v. GOOGLE LLC
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`Eleven days after the mandate, the Supreme Court is-
`sued its decision in United States v. Arthrex, Inc., 141 S. Ct.
`1970 (2021) (“Arthrex”). The Court held in Arthrex that
`APJs’ power to render final patentability decisions unre-
`viewable by an accountable principal officer gave rise to an
`Appointments Clause violation. Id. at 1980–82, 1985. The
`Court remedied the violation by (1) vitiating anything in
`35 U.S.C. § 6(c) that prevented the Director from reviewing
`final Board decisions in the IPR context and (2) “re-
`mand[ing] to the Acting Director for him to decide whether
`to rehear” the case. Id. at 1987.
`After Arthrex issued, CyWee moved this court to recall
`its mandate and remand to the PTO for proceedings con-
`sistent with Arthrex. We recalled the mandate, remanded
`“for the limited purpose of allowing CyWee the opportunity
`to request Director rehearing of the final written deci-
`sions,” and required CyWee to inform this court within
`14 days of any decision denying rehearing. Order at 3
`(Sept. 23, 2021), ECF No. 109. On remand, CyWee’s re-
`quests for Director rehearing were referred to the Commis-
`sioner for Patents, who at the time was performing the non-
`exclusive functions of the Director and Deputy Director
`(those two offices were vacant at the time). The Commis-
`sioner denied rehearing and ordered that the Board’s final
`written decisions were “the final decision[s] of the agency.”
`J.A. 41578. CyWee thereafter filed, in accordance with an
`order of this court, amended notices of appeal challenging
`the rehearing denials.
`CyWee’s opening brief challenged, among other things,
`the Commissioner’s authority to perform the review Ar-
`threx contemplates. Before any response brief was filed,
`Google moved to stay the appeal, citing the relatively ad-
`vanced state of this court’s consideration of the same issues
`in Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-2140, as
`argued and submitted to a panel of this court on March 30,
`2022. We stayed the instant case pending this court’s man-
`date in that case.
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`Less than three weeks after we stayed the instant case,
`the referenced panel issued its decision, rejecting chal-
`lenges concerning the Commissioner’s authority to perform
`the review Arthrex contemplates. Arthrex, Inc. v. Smith &
`Nephew, Inc., 35 F.4th 1328 (Fed. Cir. 2022) (“Arthrex II”).
`After this court’s mandate in Arthrex II, we lifted the stay
`in the instant case and directed CyWee to file a supple-
`mental brief identifying the arguments from its opening
`brief that it believed were not foreclosed or otherwise re-
`solved by Arthrex II. Order (Sept. 7, 2022), ECF No. 135.
`We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
`DISCUSSION
`CyWee seems to acknowledge that Arthrex II compels
`rejecting its challenges to the Commissioner’s authority to
`perform the review Arthrex contemplates, including Cy-
`Wee’s challenges under the Appointments Clause, the Fed-
`eral Vacancies Reform Act, and the Constitution’s
`separation of powers. See Appellant’s Supp. Br. 2–3.1 Cy-
`Wee also seems to acknowledge that our decision in In re
`Palo Alto Networks, Inc., 44 F.4th 1369 (Fed. Cir. 2022),
`compels rejecting its Appointments Clause challenge re-
`garding the institution decisions. See Appellant’s Supp.
`Br. 3–4. And regardless of CyWee’s willingness to concede
`the points, we conclude that Arthrex II and In re Palo Alto
`Networks compel rejecting those challenges. See Arthrex
`II, 35 F.4th at 1333–40; In re Palo Alto Networks, 44 F.4th
`at 1375 (“[T]he statutory and regulatory provisions con-
`cerning institution do not violate the Appointments
`Clause.”).
`CyWee also argues that the Board’s institution deci-
`sions and final written decisions were untimely. Appel-
`lant’s Br. 19–21;2 see id. at 39–40 (styling the untimeliness
`
`“Appellant’s Supp. Br.” refers to ECF No. 136.
`“Appellant’s Br.” refers to ECF No. 124.
`
`1
`2
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`CYWEE GROUP LTD. v. GOOGLE LLC
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`arguments as implicating “due process”); Reply Br. 2–5.3
`According to CyWee, it was not enough that the Board in-
`stituted the IPRs within the statutorily required three
`months of receiving CyWee’s preliminary responses. See
`35 U.S.C. § 314(b). Nor was it enough that the Board is-
`sued its final written decisions within the time the statute
`contemplates (i.e., one year from institution, plus in this
`case an additional one month due to joinder). See 35 U.S.C.
`§ 316(a)(11). Rather, CyWee insists, not only must the Di-
`rector be able to review institution decisions and final writ-
`ten decisions, she also must perform (or have the
`opportunity to perform) such a review within the statutory
`deadlines applicable to those decisions. See, e.g., Reply
`Br. 4 (“The [PTO] argues that the three-month deadline in
`§ 314(b) (for institution) and the one-year deadline in
`§ 316(a)(11) (for the final written decision) do not apply to
`any Director review decisions. This is incorrect.” (cleaned
`up)).
`CyWee’s untimeliness arguments are meritless. The
`statutory provisions setting specific deadlines for institu-
`tion decisions and final written decisions say nothing of
`deadlines for any further Director review of those deci-
`sions. For an institution decision, § 314(b) provides that,
`as relevant here, “[t]he Director shall determine whether
`to institute an [IPR] . . . within 3 months after . . . receiving
`a preliminary response to the petition.” The Director has
`permissibly delegated to the Board the determination of
`whether to institute an IPR. Ethicon Endo-Surgery, Inc. v.
`Covidien LP, 812 F.3d 1023, 1031–33 (Fed. Cir. 2016) (cit-
`ing, among other things, 37 C.F.R. § 42.4(a)); In re Palo
`Alto Networks, 44 F.4th at 1373, 1375–77. If the Board
`makes that determination within the § 314(b) deadline—
`and here, it did—the institution decision is timely, notwith-
`standing the possibility that the Director may later revisit
`
`
`“Reply Br.” refers to ECF No. 145.
`
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`CYWEE GROUP LTD. v. GOOGLE LLC
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`that decision. For a final written decision, § 316(a)(11) re-
`quires the Director to prescribe regulations “requiring that
`the final determination in an [IPR] be issued not later than
`1 year after” an institution decision is noticed, except that
`the Director may adjust that one-year deadline under cer-
`tain circumstances. The Director has prescribed such a
`regulation. See 37 C.F.R. § 42.100(c) (“An [IPR] proceeding
`shall be administered such that pendency before the Board
`after institution is normally no more than one year.”).
`Here, due to joinder, the Board extended the one-year
`deadline by one month and issued its final written deci-
`sions within that extended deadline. So, unless CyWee can
`show that this extension was improper (and as discussed
`below, it hasn’t), the Board’s final written decisions were
`timely—again, notwithstanding the possibility that the Di-
`rector could have later reviewed those decisions.4
`Likewise meritless is CyWee’s argument that the
`Board lacked authority to extend the one-year deadline for
`final written decisions in the case of joinder. The relevant
`statutory provision, § 316(a)(11), states that the Director
`
`
`4 CyWee’s reply brief might be read to argue that Di-
`rector review of institution decisions and final written de-
`cisions (or the opportunity for such review) need not comply
`with the specific deadlines contemplated by §§ 314(b) and
`316(a)(11) but instead with more general notions of timeli-
`ness. See Reply Br. 5 (citing 35 U.S.C. § 316(b), which re-
`quires the Director to consider the effect of certain
`regulations on the PTO’s ability to “timely complete pro-
`ceedings instituted under this chapter”); see also id. at 4
`(arguing that Director review of a final written decision
`must occur “in a reasonable time”). But even assuming (for
`argument’s sake) that such a general timeliness require-
`ment exists, and that we could review compliance with it,
`we see nothing suggesting that the PTO proceedings here
`would have violated such a requirement.
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`CYWEE GROUP LTD. v. GOOGLE LLC
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`“may adjust the time periods in this paragraph [(e.g., the
`one-year-from-institution deadline for final written deci-
`sions)] in the case of joinder under [§] 315(c).” The Director
`has delegated that time-adjustment authority to the Board.
`37 C.F.R. § 42.100(c) (“An [IPR] proceeding shall be admin-
`istered such that pendency before the Board after institu-
`tion is normally no more than one year. The time can
`be . . . adjusted by the Board in the case of joinder.” (em-
`phasis added)). And that delegation is permissible for at
`least two reasons. First, absent affirmative evidence of
`contrary congressional intent (which CyWee hasn’t shown),
`agency heads have implied authority to delegate to other
`officials within the agency. See Ethicon Endo-Surgery,
`812 F.3d at 1031–33. Second, Congress’s vesting of broad
`rulemaking powers with the Director provides an alterna-
`tive source of her authority to delegate. See id. at 1033
`(citing 35 U.S.C. §§ 2(b)(2), 316(a)(4)).
`CyWee nonetheless maintains that, because there was
`no “right” for Director review of the Board’s extension deci-
`sions, an Appointments Clause violation has occurred. See
`Appellant’s Br. 22. If by “right” CyWee means that the Di-
`rector had no right to review those decisions, CyWee is
`plainly mistaken: “as a matter of law, the usual rule is that
`an agency head’s delegation of her authority to subordi-
`nates is premised, at least in part, on the delegating official
`maintaining the power to review the decisions of the dele-
`gee.” In re Palo Alto Networks, 44 F.4th at 1375 n.3
`(cleaned up). And if by “right” CyWee means that there
`was no right for it to seek or obtain Director review, even if
`it were correct on that score, that also would not give rise
`to an Appointments Clause violation. “[T]he Appointments
`Clause was intended to prevent unappointed officials from
`wielding too much authority, not to guarantee procedural
`rights to litigants, such as the right to seek rehearing from
`the Director.” Piano Factory Grp., Inc. v. Schiedmayer Ce-
`lesta GmbH, 11 F.4th 1363, 1374 (Fed. Cir. 2021); see also
`In re Palo Alto Networks, 44 F.4th at 1376 (observing that
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`CYWEE GROUP LTD. v. GOOGLE LLC
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`language in Arthrex “strongly suggests that delegation to
`the Board of the authority to decide on institution without
`a mechanism for parties to subsequently request Director
`review does not present Appointments Clause problems”);
`id. at 1375–77.5
`
`CONCLUSION
`We have considered CyWee’s remaining arguments
`and find them unpersuasive. For the foregoing reasons, we
`affirm.
`
`AFFIRMED
`
`
`5 CyWee’s supplemental brief—ordered solely to as-
`sess which arguments in its opening brief survived our
`later-issued precedent—sought to add new arguments. In
`particular, CyWee cited a U.S. Government Accountability
`Office report dated July 21, 2022, and “request[ed] that it
`be allowed to brief” an issue concerning alleged structural
`bias at the Board. Appellant’s Supp. Br. 4–6. We deny the
`request.
`
`