In Automated Merchandising v. Lee, 2014-1728 (April 10, 2015), the Federal Circuit held that AMS’s challenge to the PTO’s refusal to terminate pending reexaminations cannot proceed because the refusal is not a “final agency action” under the APA, 5 U.S.C. § 704.

AMS sued Crane in for infringement of four patents (U.S. Patent Nos. 6,384,402, 6,794,634, 7,191,915, and 7,343,220). Crane requested inter partes reexamination of the patents.  AMS and Crane settled their suit, with the court issuing a consent judgment that “[t]he parties stipulate that [the four patents] are valid.” AMS then asked the USPTO to terminate the reexamination, but the USPTO refused.  AMS brought an action in district court, challenging the USPTO’s refusal under the APA.  The district court rejected the challenge on the merits, but the Federal Circuit found that the USPTO’s decision was not a final decision that could be challenged under the APA.