Case: 23-119 Document: 19 Page: 1 Filed: 03/23/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: ETHANOL BOOSTING SYSTEMS, LLC,
MASSACHUSETTS INSTITUTE OF TECHNOLOGY,
Petitioners
______________________
2023-119
______________________
On Petition for Writ of Mandamus to the United States
Patent and Trademark Office in Nos. IPR2021-00339,
IPR2021-00340, and IPR2021-00341.
______________________
ON PETITION
______________________
Before LOURIE, PROST, and CHEN, Circuit Judges.
PER CURIAM.
ORDER
Ethanol Boosting Systems, LLC and Massachusetts In-
stitute of Technology (collectively, “EBS”) petition for a
writ of mandamus directing the Patent Trial and Appeal
Board (“PTAB”) to vacate its November 21, 2022, order and
to terminate the inter partes review (“IPR”) proceedings.
The United States Patent and Trademark Office
(“USPTO”) and Ford Motor Company (“Ford”) oppose. For
the reasons provided below, we deny the petition.
Case: 23-119 Document: 19 Page: 2 Filed: 03/23/2023
2 IN RE: ETHANOL BOOSTING SYSTEMS, LLC
Ford filed IPR petitions challenging patent claims that
EBS asserted in parallel district court proceedings. In
July 2021, the PTAB initially denied institution. Relying
on the district court’s claim construction, the PTAB con-
cluded that Ford had failed to show that there was a rea-
sonable likelihood that it would prevail in its challenges.
Ford requested rehearing and asked the PTAB to hold
Ford’s reconsideration request in abeyance pending EBS’s
appeal before this court challenging the district court’s
claim construction.
In July 2022, this court issued its decision in that ap-
peal, reversing the district court’s claim construction. Eth-
anol Boosting Sys., LLC v. Ford Motor Co., No. 2021-1949,
2022 WL 2798395 (Fed. Cir. July 18, 2022). Following that
decision, on November 21, 2022, the PTAB granted Ford’s
request for rehearing and instituted IPR proceedings. EBS
then filed this petition, challenging the timeliness of the
PTAB’s actions and requesting that this court direct the
PTAB to terminate the proceedings. We have jurisdiction
over EBS’s mandamus petition under 28 U.S.C.
§§ 1295(a)(4)(A), 1651, and 35 U.S.C. §§ 141(c), 319. See
Mylan Laby’s Ltd. v. Janssen Pharmaceutica, N.V., 989
F.3d 1375, 1380 (Fed. Cir. 2021).
In order for EBS to establish entitlement to the “ex-
traordinary remedy” of a writ of mandamus, it must show
that: (1) there are “no other adequate means to attain the
relief [it] desires,” for “the writ will not be used as a substi-
tute for the regular appeals process,” (2) the “right to issu-
ance of the writ is clear and indisputable,” and (3) “the writ
is appropriate under the circumstances.” Cheney v. U.S.
Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) (internal
quotation marks and citations omitted). EBS has failed to
satisfy this demanding standard.
In particular, to the extent 35 U.S.C. § 314(d) does not
bar judicial review of its arguments altogether, EBS has
not shown that it will be unable to raise its arguments after
Case: 23-119 Document: 19 Page: 3 Filed: 03/23/2023
IN RE: ETHANOL BOOSTING SYSTEMS, LLC 3
the conclusion of the IPR proceedings. Cf. CyWee Grp. Ltd.
v. Google LLC, 59 F.4th 1263, 1267 (Fed. Cir. 2023) (re-
viewing timeliness challenge to Director review of institu-
tion decision in an appeal after final written decision,
though not addressing § 314(d)). Moreover, EBS does not
identify any “irremediable interim harm [that] can justify
mandamus, which is unavailable simply to relieve [EBS] of
the burden of going through the inter partes review,” In re
Procter & Gamble Co., 749 F.3d 1376, 1379 (Fed. Cir. 2014).
Under the particular circumstances of this case, EBS’s
petition has failed to show entitlement to the extraordinary
remedy of a writ of mandamus.
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
FOR THE COURT
March 23, 2023 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court