Case: 22-114 Document: 17 Page: 1 Filed: 02/11/2022
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: B.E. TECHNOLOGY, L.L.C.,
Petitioner
______________________
2022-114
______________________
On Petition for Writ of Mandamus to the United States
Patent and Trademark Office in Nos. IPR2021-00482,
IPR2021-00483, IPR2021-00484, and IPR2021-00485.
______________________
ON PETITION
______________________
Before MOORE, Chief Judge, DYK and STOLL, Circuit
Judges.
MOORE, Chief Judge.
ORDER
B.E. Technology, L.L.C. (“B.E.”) petitions this court for
a writ of mandamus challenging decisions of the Patent
Trial and Appeal Board instituting inter partes review pro-
ceedings. Twitter, Inc. and Google LLC oppose.
B.E. owns several patents relating to user interfaces
that provide advertising over a global computer network.
In May 2020, B.E. filed suit in federal district court, alleg-
ing that Twitter and Google infringe three of its patents.
While those cases were pending, Google and Twitter each
Case: 22-114 Document: 17 Page: 2 Filed: 02/11/2022
2 IN RE: B.E. TECHNOLOGY, L.L.C.
petitioned the United States Patent and Trademark Office
to review the patents. B.E. opposed, raising various con-
stitutional challenges. In September 2021, the Board in-
stituted review.
B.E. now petitions for a writ of mandamus seeking to
terminate those proceedings, arguing that such review
amounts to a violation of its due process rights. Specifi-
cally, B.E. argues that the compensation structure of ad-
ministrative patent judges (APJs) undermines their ability
to act as impartial adjudicators, Pet. at 27; “USPTO lead-
ership routinely abuses its case-assignment authority and
‘stacks’ APJ panels to control adjudicative outcomes,” id. at
32; and a “secret” AIA Review Committee deprives B.E. of
its right to know whether officials are attempting to im-
properly influence a decision, id. at 34.
Mandamus is “reserved for extraordinary situations.”
Gulfstream Aerospace Corp. v. Mayacamas Corp.,
485 U.S.
271, 289 (1988) (citation omitted). Under the standard for
obtaining mandamus relief, the petitioner must: (1) show
it does not have any other method of obtaining relief; (2)
show that it has a clear and indisputable legal right; and
(3) convince the court that the “writ is appropriate under
the circumstances.” Cheney v. U.S. Dist. Ct. for D.C.,
542
U.S. 367, 380–81 (2004) (citation omitted). B.E. fails to
meet these necessary conditions for mandamus relief.
B.E. has available means to raise its due process chal-
lenge on review from final written decisions. See Sec. Peo-
ple, Inc. v. Iancu,
971 F.3d 1355, 1359 (Fed. Cir. 2020)
(“[T]his court . . . can meaningfully address constitutional
questions on appeal.”); Mylan Lab’ys Ltd. v. Janssen Phar-
maceutica, N.V.,
989 F.3d 1375, 1382 n.5 (Fed. Cir. 2021)
(“We note that the Supreme Court has suggested decisions
granting institution may be reviewable (to a limited extent)
on direct appeal from a final written decision.”).
B.E. also has not shown clear legal entitlement to ter-
mination of these proceedings. This court has considered
Case: 22-114 Document: 17 Page: 3 Filed: 02/11/2022
IN RE: B.E. TECHNOLOGY, L.L.C. 3
and rejected similar arguments that the APJs’ compensa-
tion structure violates due process. See Mobility Workx,
LLC v. Unified Pats., LLC,
15 F.4th 1146, 1150 (Fed. Cir.
2021). B.E. has not shown a clear right to a different result
here by relying primarily on a self-published article that is
outside of the record. B.E.’s other arguments concerning
panel stacking and AIA Review Committees rely on noth-
ing more than speculation and conjecture that USPTO
leadership may attempt to improperly influence these pro-
ceedings in favor of Google and Twitter.
Accordingly,
IT IS ORDERED THAT:
(1) The petition is denied.
(2) Costs to Google and Twitter.
FOR THE COURT
February 11, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
