On April 20, 2020, the Supreme Court issued its decision in Thryv, Inc. v. Click-to-Call Technologies, LP (available here). 35 U.S.C. § 314(d) provides that, with respect to inter partes reviews, “[t]he determination by the [Patent & Trademark Office’s] Director whether to institute an inter partes review under this section shall be final and nonappealable.”
In the case, the PTAB instituted an IPR in response to a petition from Thryv that resulted in the cancellation of several patent claims. Patent owner Click-to-Call appealed, arguing that Thryv’s petition was untimely, as it was filed more than a year after Thryv was sued. (35 U.S.C. § 315(b) provides that, “[a]n inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.”)
The question before the Court was whether § 314(d) precluded Call-to-Click’s appeal because the PTAB’s application of § 315(b)’s time limit was closely related to its decision whether to institute the IPR and is therefore rendered nonappealable by § 314(d). The Federal Circuit had held that time-bar determinations under § 315(b) were appealable.
The Supreme Court reversed, vacating the Federal Circuit decision with instructions to dismiss the appeal for lack of appellate jurisdiction. The Supreme Court found that § 315(b)’s time limit was closely related to the decision whether to institute the IPR and thus is nonappealable under § 314(d).
Prediction: this will likely result in a reversal of the Federal Circuit’s recent Facebook decision, in which the Federal Circuit reversed the PTAB when ruling that a petitioner could not join its own IPR after the 1-year bar date, as Thryv stands for the proposition that such a determination is not reviewable in court.