Odyssey Logistics and Tech. v. Iancu, 959 F.3d 1104

Odyssey Logistics filed two patent applications (’678 in 2004; ’603 in 2006) and later filed a facial challenge to the PTO’s 2011 ex parte-appeal rule amendments.
Count I: After the PTAB reversed the examiner’s rejections in the ’678 appeal, the Technology Center Director issued an examiner request for rehearing; Odyssey sued before the Board resolved rehearing.
Count II: Odyssey challenged the Director’s dismissal of a petition to designate portions of the examiner’s answer as new grounds in the ’603 appeal, again before final Board disposition.
Count III: Odyssey brought a facial APA challenge to the 2011 amendments to the Rules of Practice Before the Board (ex parte appeals), filed more than six years after publication.
The district court dismissed Counts I and II for lack of final agency action and Count III as time-barred under 28 U.S.C. § 2401; Odyssey appealed. The Federal Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board’s reversal plus the Director’s request for rehearing (’678) constituted final agency action for APA review	Rehearing was ultra vires and amounted to final action; Odyssey could seek review now	Rehearing is part of ordinary administrative reconsideration and is nonfinal until the Board acts	Nonfinal: rehearing did not consummate decisionmaking nor fix rights; APA review premature
Whether dismissal of Odyssey’s petition to designate new grounds (’603) was final	Dismissal resolved petition and caused legal consequence warranting immediate review	Dismissal did not determine rights or produce legal consequences until the Board acts on later filings	Nonfinal: petition denial did not fix rights; challenge premature
When the statute of limitations accrues for a facial APA challenge to PTO rules (2011 amendments)	Limit accrual runs from the rules’ effective date (or first adverse application), not publication; Odyssey filed within six years of effective date	For a facial/substantive challenge the limitations period begins at publication (final agency action)	Time-barred: facial challenge accrued at publication; suit filed after six-year limit and is barred

Smith v. Berryhill, 139 S. Ct. 1765 (2019) (articulates APA finality test: consummation of decisionmaking and legal consequences)
Stone v. I.N.S., 514 U.S. 386 (1995) (timely motion for reconsideration renders underlying order nonfinal)
Hyatt v. U.S. Pat. & Trademark Off., 904 F.3d 1361 (Fed. Cir. 2018) (statute of limitations accrues at agency’s initial decision or adverse application; distinguishes procedural vs substantive challenges)
Hire Order Ltd. v. Marianos, 698 F.3d 168 (4th Cir. 2012) (facial challenge accrual begins at regulation publication)
Preminger v. Sec’y of Veterans Affairs, 517 F.3d 1299 (Fed. Cir. 2008) (distinguishes procedural challenges and identifies promulgation as relevant final action)
In re Durance, 891 F.3d 991 (Fed. Cir. 2018) (illustrative of proper sequence for APA review after PTAB final decision and rehearing)
Franklin v. Massachusetts, 505 U.S. 788 (1992) (final agency action occurs when decisionmaking is complete and directly affects parties)
Automated Merch. Sys., Inc. v. Lee, 782 F.3d 1376 (Fed. Cir. 2015) (no final agency action where administrative processes remain available)