SWIPLit

By Anne Bolamperti and David G. Barker

Yesterday, in Thryv, Inc. v. Click-To-Call Technologies LP, the Supreme Court held that Patent Trial and Appeal Board (“PTAB”) decisions regarding the time limit for filing inter partes reviews (“IPRs”) are not subject to judicial review.

Thryv filed an IPR against Click-To-Call’s patent for anonymous telephone call technology. Click-to-Call argued the IPR was untimely because it was filed outside the one-year limit in 35 U.S.C. § 315(b). The PTAB nonetheless instituted the IPR and invalidated 13 patent claims. On appeal, the Federal Circuit ultimately held the IPR was time barred and vacated the PTAB’s decision with instructions to dismiss the IPR.

In a 7-2 opinion by Justice Ginsburg, the Supreme Court vacated the judgment and held that 35 U.S.C. § 314(d)’s “final and nonappealable” language barred judicial review of how the PTAB applied the IPR time limit in 35 U.S.C. § 315(b). The Court relied on its previous decision in Cuozzo Speed Technologies, LLC v. Lee (see here), where the Court held that § 314(d) bars review of matters “closely tied to the application and interpretation of statutes related to” the PTAB’s institution decision. Following Cuozzo, the Court held in Thryv that the time limit under § 315(b) is “integral to, indeed a condition, on, institution,” that “expressly governs institution and nothing more.” Therefore, § 314(d) barred Click-to-Call’s appeal of the PTAB’s decision.

Justice Gorsuch dissented, joined by Justice Sotomayor (in all but Section V of the opinion), arguing, “The presumption of judicial review is deeply rooted in our history and separation of powers.” In his view, the Court’s decision in Thryv ceded core powers of judicial review to the PTAB, an administrative agency, and left “the disposition of private rights and liberties to bureaucratic mercy.”