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$OPNT Although the PTAB's decision not to institute cannot be appealed, the petitioner can still challenge the PTAB's decision by requesting a rehearing under 37 C.F.R. § 42.71(d). The rehearing request must be filed within 30 days of the PTAB's decision not to institute IPR.6 No prior authorization from the PTAB is needed. In the request, the petitioner should identify specifically all matters the PTAB misapprehended or overlooked, and the place where each matter was previously addressed.7 Furthermore, the identified mistake must be more specific than the PTAB's ultimate conclusion not to institute IPR, and the petitioner should not attempt to introduce new arguments.fokabasher, published January 18, 2021
The standard of review is abuse of discretion, a high bar for the challenger. Chances of a successful request for rehearing are slim: only 12% of the PTAB's decisions actually grant a rehearing.8
To my best knowledge Teva has not requested a rehearing.