Federal Circuit disposition — 25-148

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In Re HIGHLEVEL, INC.,
Petitioner
______________________
2025-148
______________________
On Petition for Writ of Mandamus to the United States
Patent and Trademark Office in Nos. IPR2025-00234 and
IPR2025-00235.
______________________
ON PETITION
______________________
Before PROST, CHEN, and HUGHES, Circuit Judges.
PER CURIAM.
O R D E R
HighLevel, Inc. petitioned for inter partes review
(“IPR”) of patents owned by Etison LLC, doing business as
ClickFunnels (“ClickFunnels”). The Patent Trial and Ap-
peal Board declined to institute IPR proceedings. High-
Level now seeks a writ of mandamus directing the United
States Patent and Trademark Office (“PTO”) to vacate and
reconsider the institution decisions. We deny that request
for relief.
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IN RE HIGHLEVEL, INC. 2
I.
ClickFunnels owns two patents relating to a website-
creation system at issue in this case: U.S. Patent Nos.
10,846,357 and 11,361,047. In April 2024, ClickFunnels
sued HighLevel for infringement. In December 2024, High-
Level filed two petitions seeking IPR of the patents.
At the time HighLevel filed its petitions, the Director
had in place interim guidance directing the Board not to
“discretionarily deny institution in view of parallel district
court litigation where a petitioner presents a stipulation
not to pursue in a parallel proceeding the same grounds or
any grounds that could have reasonably been raised before”
the agency. Appx24. ClickFunnels so stipulated. How-
ever, on February 28, 2025, that guidance was rescinded.
And on March 26, 2025, additional processes were imple-
mented by the Acting Director; among them, permitting
parties to address all relevant considerations, including
“[w]hether the [Board] or another forum has already adju-
dicated the validity or patentability of the challenged pa-
tent claims.” Appx45.
On June 2, 2025, after being informed that the district
court had determined that the patents claim ineligible sub-
ject matter under 35 U.S.C. § 101, the Board denied the pe-
titions. Following the reasoning in Hulu, LLC v. Piranha
Media Distribut., LLC, No. IPR2024-01252 (P.T.A.B. Apr.
17, 2025), which was designated as “informative,” the
Board concluded “the efficiency and integrity of the patent
system is best served by denying institution.” Appx12. On
August 13, 2025, the PTO denied Director review. High-
Level then filed this petition, raising constitutional and
statutory challenges.
II.
“The remedy of mandamus is a drastic one, to be in-
voked only in extraordinary situations.” Kerr v. U.S. Dist.
Ct. for N. Dist. of Cal., 426 U.S. 394, 402 (1976).
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IN RE HIGHLEVEL, INC. 3
Accordingly, “three conditions must be satisfied before it
may issue.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367,
380 (2004). The petitioner must show a “clear and indis-
putable” right to relief. Id. at 381 (quoting Kerr, 426 U.S.
at 403). The petitioner must “lack adequate alternative
means to obtain the relief” it seeks. Mallard v. U.S. Dist.
Ct. for S. Dist. of Iowa, 490 U.S. 296, 309 (1989); Cheney,
542 U.S. at 380. And “even if the first two prerequisites
have been met, the issuing court, in the exercise of its dis-
cretion, must be satisfied that the writ is appropriate un-
der the circumstances.” Cheney, 542 U.S. at 381.
Given Congress committed institution decisions to the
Director’s discretion, SAS Inst., Inc. v. Iancu, 584 U.S. 357,
366 (2018), and protected exercise of that discretion from
judicial review by making such determinations “final and
nonappealable,” 35 U.S.C. § 314(d), mandamus is ordinar-
ily unavailable for review of institution decisions. Mylan
Lab’ys Ltd. v. Janssen Pharmaceutica, N.V., 989 F.3d 1375,
1382 (Fed. Cir. 2021). That general prohibition bars review
of decisions denying institution of IPR proceedings for effi-
ciency reasons based on parallel district court litigation in-
volving the same patents, id. at 1378–79, 1381. We have
noted possible exceptions for “colorable constitutional
claims,” id. at 1382, and certain statutory challenges, see
Apple Inc. v. Vidal, 63 F. 4th 1, 12 n.5 (Fed. Cir. 2023). But
no such claims have been presented here.
HighLevel’s constitutional challenges, like those raised
in In re Motorola Solutions, Inc., No. 2025-134, 2025 WL
3096514 (Fed. Cir. Nov. 6, 2025), fail to present the kind of
property rights or retroactivity concerns that might give
rise to a cognizable Due Process Clause claim. See Mylan,
989 F.3d at 1383. Like Motorola, HighLevel identifies no
“constitutionally protected right for its petition to be con-
sidered” based on only certain criteria and certainly “no
[constitutional] right to an IPR.” Motorola, 2025 WL
3096514, at *4 (quoting Mylan, 989 F.3d at 1383). High-
Level’s mere reliance that the PTO would evaluate its
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IN RE HIGHLEVEL, INC. 4
petition without regard to efficiency concerns based on par-
allel litigation, moreover, is insufficient to establish a con-
stitutional due process violation. Id. (citing United States
v. Carlton, 512 U.S. 26, 33 (1994)).
HighLevel likewise has not presented a non-constitu-
tional claim that is mandamus-worthy. The Board re-
viewed the petitions based on its discretionary factors for
determining whether to deny IPR in situations where there
are parallel civil proceedings. The Board concluded that,
in light of the district court’s § 101 decision, conducting IPR
would not be an efficient use of agency and party resources.
In circumstances like these, we have not exercised manda-
mus authority to disturb a denial of institution decision
and see no basis to do so here either. See Mylan, 989 F.3d
at 1382 (holding a petitioner has no right to mandamus re-
lief when non-constitutional challenge is to “the Director’s
exercise of [] discretion to deny institution”).
HighLevel argues the PTO was required to promulgate
such considerations for institution through notice-and-
comment rulemaking procedures. But that challenge, like
the related challenge in Motorola, can be raised in an APA
action in federal district court, such that there appears to
be an adequate alternative avenue for relief. Motorola,
2025 WL 3096514 at *5 (“[O]n that issue, there appears to
be no dispute that an APA action in federal district court
affords Motorola an available avenue to raise this same
challenge”); see also Apple, 63 F.4th at 14. While High-
Level seeks to use this challenge to vacate the non-institu-
tion decisions and reconsider institution based on only
certain criteria, as explained in Motorola, “that request is
nothing but an attempted end run around § 314(d)’s bar on
review” and foreclosed by precedent. Motorola, 2025 WL
3096514 at *5. We thus reject that challenge as well.
Accordingly,
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IN RE HIGHLEVEL, INC. 5
IT IS ORDERED THAT:
(1) The petition is denied.
(2) The motion for leave to file a brief amici curiae is
granted and the corresponding brief is accepted for filing.
December 9, 2025
Date
FOR THE COURT
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