Monday, April 20, 2020

No Failure To Thryv

The United States Supreme Court ("Supremes") published its opinion in the patent case Thryv v. Click-to-Call Technologies on April 20, 2020.  In her introduction to the opinion, Justice Ruth Bader Ginsburg provides a clear and succinct overview of the facts, the issues, and the Supremes' decision:
Inter partes review ["IPR"] is an administrative process in which a patent challenger may ask the U. S. Patent and Trademark Office (PTO) to reconsider the validity of earlier granted patent claims. This case concerns a statutorily prescribed limitation of the issues a party may raise on appeal from an inter partes review proceeding. 
When presented with a request for inter partes review, the agency must decide whether to institute review. 35 U. S. C. §314. Among other conditions set by statute, if the request comes more than a year after suit against the requesting party for patent infringement, “[a]n inter partes review may not be instituted.” §315(b). “The determination by the [PTO] Director whether to institute an inter partes review under this section shall be final and nonappealable.” §314(d). 
In this case, the agency instituted inter partes review in response to a petition from Thryv, Inc., resulting in the cancellation of several patent claims. Patent owner Click-to-Call Technologies, LP, appealed, contending that Thryv’s petition was untimely under §315(b). 
The question before us: Does §314(d)’s bar on judicial review of the agency’s decision to institute inter partes review preclude Click-to-Call’s appeal? Our answer is yes.  The agency’s application of §315(b)’s time limit, we hold, is closely related to its decision whether to institute inter partes review and is therefore rendered nonappealable by §314(d).  [Footnote omitted.] 
In light of this decision, it appears parties would be better served appealing to the Director of the PTO to institute IPRs than appealing institution decisions by the Director.