In 2011, the America Invents Act'significantly changed United States patent law. One major change addressed the increase in-and the challenges associated with-patent litigation in federal courts. Congress sought to provide a viable cost-effective alternative to litigating the validity of a patent. 2 Its solution was inter partes review (" IPR"), an adjudicative proceeding in front of administrative law judges (" ALJs") at the Patent Trial and Appeal Board (" PTAB"). 3 IPR provided an avenue for accused infringers to challenge the validity of a patent, outside of the district court forum. However, it received mixed reviews; while defendants hailed the change as a remedy for costly infringement suits, patent owners have largely balked at what several term the" patent death squad." 4 Thus, the tension between those seeking to protect patent rights and those seeking to invalidate patent rights underlies the controversy surrounding IPR institution decisions.

The IPR institution process is seemingly straightforward: a non patent owner petitions for IPR and the United States Patent and Trademark Office (" PTO") Director uses their sole discretion to decide whether to institute IPR--this decision has been delegated to ALJ panels and is non-appealable.'However, a recent flood of litigation6 questions whether the statute granting the Director discretionary power over IPR institution is in fact deceptively simple. The litigation surrounds two PTAB opinions-designated as precedential-that bind PTAB panels when considering IPR institutions in light of parallel proceedings involving the same patent.'These decisions-in NHK