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Supreme Court Bars Appeal of PTAB Time-Bar Decisions

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On Monday, April 20th, the Supreme Court ruled in Thryv, Inc. v. Click-To-Call Techs., LP, No. 18-916, 590 U.S. __ (2020), that decisions by the Patent Trial and Appeal Board finding that petitions for inter partes review are timely filed can no longer be appealed. The Court’s decision restricts the arguments patent owners can make and reverses the Federal Circuit’s prior ruling on the issue.

In a 7-2 decision, the Supreme Court overruled the Court of Appeals for the Federal Circuit’s holding in Wi-Fi One, LLC v. Broadcom Corp., 878 F.3d 1364 (2018) that appeals on PTAB time-bar rulings are allowed because it was not clear Congress intended to prohibit them. Section 314(d) of the America Invents Act precludes appeals on the grounds that the agency should have refused “to institute an inter partes review.” The Court’s prior ruling in Cuozzo Speed Techs., LLC v. Lee, 579 U.S. __ (2016) indicates that appellate review is not available for matters that are “closely tied to the application and interpretation of statutes related” to the decision to institute review. Writing for the majority, Justice Ruth Bader Ginsburg found that the time-bar challenge “easily meets that measurement.”

The case involved petitioners, Thryv, Inc., who sought inter partes review in 2013 of Click-to-Call’s patent relating to a technology for anonymous telephone calls. The PTAB instituted review over Click-to-Call’s objections that inter partes review was time-barred by a 2001 infringement suit. However, following their ruling in Wi-Fi One, the Federal Circuit vacated the Board’s final written decision, finding Thryv’s initial petition untimely.

Thryv appealed to the Supreme Court, arguing that the time-bar issue is not reviewable according to the language of the AIA. Click-to-Call argued that Section 314(d)’s bar on judicial review applies only to the threshold determination of a reasonable likelihood of prevailing. In its opinion, the Supreme Court found “no need to venture beyond” Cuozzo’s holding that section 314(d) bars review of matters “closely tied” to the institution of review. The opinion further cited the statute’s purpose to “weed out” bad patent claims efficiently; allowing time-bar appeals would “tug against that objective.”

Justice Neil Gorsuch, joined in part by Justice Sonia Sotomayor, dissented, writing that the majority’s holding concedes the judiciary’s power to review the decisions of agency officials, “leaving the disposition of private rights and liberties to bureaucratic mercy.”

Baker Botts will continue to monitor the law as it develops following the Supreme Court’s ruling.

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