Federal Circuit disposition — 26-123

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In Re VOLKSWAGEN GROUP OF AMERICA, INC.,
Petitioner
______________________
2026-123
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On Petition for Writ of Mandamus to the United States
Patent and Trademark Office in No. IPR2025-00925.
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ON PETITION
______________________
Before DYK, REYNA, and HUGHES, Circuit Judges.
PER CURIAM.
O R D E R
Volkswagen Group of America, Inc. sought inter partes
review (“IPR”) of Longhorn Automotive Group LLC’s pa-
tent in response to being sued for infringement. After con-
cluding IPR would not be an appropriate use of agency
resources, the Acting Director of the United States Patent
and Trademark Office (“USPTO”) granted Longhorn’s re-
quest for discretionary denial.1 Volkswagen now petitions
1 John A. Squires was confirmed as the Director af-
ter the Acting Director’s non-institution decision.
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IN RE VOLKSWAGEN GROUP OF AMERICA, INC. 2
this court for a writ of mandamus seeking to vacate the
non-institution decision and to direct the USPTO to recon-
sider institution without regard to discretionary consider-
ations. The Director and Longhorn oppose.
Congress committed institution decisions to the Direc-
tor’s discretion, even when the statutory pre-conditions are
present, SAS Inst., Inc. v. Iancu, 584 U.S. 357, 366 (2018);
Apple Inc. v. Squires, 166 F.4th 1349, 1353 (Fed. Cir.
2026). It protected the exercise of that discretion from re-
view by making such determinations “final and nonappeal-
able,” 35 U.S.C. § 314(d), relief by means of mandamus or
direct appeal is ordinarily unavailable, Mylan Lab’ys Ltd.
v. Janssen Pharmaceutica, N.V., 989 F.3d 1375, 1382 (Fed.
Cir. 2021). Volkswagen, nevertheless, urges relief here on
the ground that “Congress delegated legislative power
when it granted the Director the power to decide whether
to adjudicate disputes involving patent validity,” and also
gave the Director “unbounded discretion to deny institu-
tion of” IPR, and thus “Congress violated the nondelegation
doctrine.” Pet. at 4; Reply at 8.2 This is a constitutional
issue as to which review is available. Mylan, 989 F.3d at
1382.
It is true, as the Supreme Court has explained, Con-
gress provided “no mandate to institute” IPR—instead, the
Director’s “decision to deny a petition is a matter commit-
ted to [his] discretion.” Cuozzo Speed Techs., LLC v. Lee,
579 U.S. 261, 273 (2016) (citing 5 U.S.C. § 701(a)(2); 35
U.S.C. § 314(a)). But that exercise of discretion does not
necessarily involve legislative power. In fact, the Court has
2 Volkswagen did not raise this challenge below. See
In re DBC, 545 F.3d 1373, 1378 (Fed. Cir. 2008) (“It is well-
established that a party generally may not challenge an
agency decision on a basis that was not presented to the
agency.”). Regardless, entitlement to relief has not been
established for the reasons provided herein.
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IN RE VOLKSWAGEN GROUP OF AMERICA, INC. 3
explained, to the contrary, that “an agency’s refusal to in-
stitute proceedings,” as is the situation here, “shares to
some extent the characteristics of the decision of a prose-
cutor in the Executive Branch not to indict—a decision
which has long been regarded as the special province of the
Executive Branch, inasmuch as it is the Executive who is
charged by the Constitution to ‘take Care that the Laws be
faithfully executed.’” Heckler v. Chaney, 470 U.S. 821, 831–
32 (1985) (quoting U.S. Const., Art. II, § 3); see Apple, 166
F.4th at 1360; see also TransUnion LLC v. Ramirez, 594
U.S. 413, 430 (2021) (“[T]he choice of how to prioritize and
how aggressively to pursue legal actions . . . falls within the
discretion of the Executive Branch[.]”), Oil States Energy
Servs., LLC v. Greene’s Energy Grp., LLC, 584 U.S. 325,
336 (2018) (“When the PTO adjudicates the patentability
of inventions, it is exercising the executive power.” (cleaned
up)). Volkswagen identifies no contrary authority.
Volkswagen relies on Jarkesy v. SEC, 34 F.4th 446 (5th
Cir. 2022), aff’d on other grounds, 603 U.S. 109 (2024),
which dealt with the Securities and Exchange Commission
(“SEC”)’s authority to bring enforcement proceedings
within either the agency or an Article III court. The Fifth
Circuit’s majority drew a sharp distinction between, on the
one hand, “the ability to determine which subjects of its en-
forcement actions are entitled to Article III proceedings
with a jury trial,” “a delegation of legislative power,” id. at
4613 (citing Crowell v. Benson, 285 U.S. 22, 50 (1932)), and,
on the other hand, the discretion whether to launch an en-
forcement action in the first place, which constitutes
3 Like the United States Court of Appeals for the
Third Circuit, we question the correctness of the Fifth Cir-
cuit’s analysis. See, e.g., Axalta Coating Sys. LLC v. FAA,
144 F.4th 467, 478–79 (3d Cir. 2025).
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IN RE VOLKSWAGEN GROUP OF AMERICA, INC. 4
“executive, not legislative, power,” id. at 462. Applying
that distinction, the Fifth Circuit’s majority in Jarkesy held
that the challenged scheme was unconstitutional because
Congress delegated the former authority to the SEC with-
out providing an intelligible principle to guide the agency’s
decision as to which defendants would receive the right to
a jury trial. Id.
The present situation is materially different in that it
does not involve whether a procedure such as a jury trial
should be allowed but rather involves a decision whether
to institute proceedings. Congress set the options for post-
grant challenges to patent validity (and accompanying pro-
cedures), and the Director merely decides whether the
USPTO will take “a second look at an earlier administra-
tive grant of a patent.” Oil States, 584 U.S. at 336 (cleaned
up); see Regents of Univ. of Minn. v. LSI Corp., 926 F.3d
1327, 1339 (Fed. Cir. 2019). And, unlike in Jarkesy, “[a]
non-institution decision has no legal effect on the underly-
ing patent rights and obligations,” “leav[ing] a patent chal-
lenger’s actual legal rights and obligations unchanged,”
Apple, 166 F.4th at 1361. Thus, Volkswagen has provided
no persuasive basis to conclude the Director exercises leg-
islative power here.4
Accordingly,
4 To the extent Volkswagen argues the Director ex-
ceeded his statutory authority in denying institution or set-
ting institution policy, review of that argument is barred
here. See § 314(d); In re Motorola Solutions, Inc., 159 F.4th
30, 38 (Fed. Cir. 2025); Mylan, 989 F.3d at 1382–83; see
also Apple Inc. v. Vidal, 63 F.4th 1, 11–14 (Fed. Cir. 2023);
In re Cambridge Indus. USA Inc., No. 2026-101, 2025 WL
3526129, at *2 n.1 (Fed. Cir. Dec. 9, 2025).
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IN RE VOLKSWAGEN GROUP OF AMERICA, INC. 5
IT IS ORDERED THAT:
The petition is denied.
March 19, 2026
Date
FOR THE COURT
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