Ethicon Endo-Surgery, Inc. (“Ethicon”) owns U.S. Patent No. 8,317,070 (“the ’070 patent”). Covidien LP (“Covidien”) petitioned the United States Patent and Trademark Office (“PTO”) for inter partes review of claims 1–14 of the ’070 patent. The PTO, through a panel of the Patent Trial and Appeals Board (“PTAB” or “Board”), granted the petition. On the merits, the same Board panel found all challenged claims invalid as obvious over the prior art. Ethicon appeals, asserting that the Board’s final decision is invalid because the same Board panel made both the decision to institute and the final decision. Ethicon also asserts that the Board erred in finding the claims obvious.
We first hold that 35 U.S.C. § 314(d) does not preclude us from hearing Ethicon’s challenge to the authority of the Board to render a final decision. On the merits we hold that neither the statute nor the Constitution precludes the same panel of the Board that made the decision to institute inter partes review from making the final determination. We also find no error in the Board’s determination that the ’070 patent claims would have been obvious over the prior art. Accordingly, we affirm.