May 27, 2020

On April 20, 2020, in a 7-2 decision, the U.S. Supreme Court held that the PTAB’s  application of 35 U.S.C. § 315(b)’s time-bar is not appealable under § 314(d), abrogating the holding in Wi-Fi One, LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018) (en banc), that time-bar determinations under § 315(b) are appealable, not withstanding § 314(d).  Thryv, Inc. v. Click-To-Call Technologies, LP, 140 S. Ct. 1367 (2020) (J. Ginsburg).  The Court was guided by its holding in Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016), which dealt with appealability under § 314(d) of PTAB decisions regarding the “particularity” requirement of § 312(a)(3).  Cuozzo held that § 314(d) bars appellate review of “questions that are closely tied to the application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review.” 136 S. Ct. at 2141-42.  The Court applied this to the issue of whether PTAB decisions that an IPR Petition is/is not time-barred under § 315(b) are appealable, and determined that § 314(d) bars appellate review of those decisions. Thryv, 140 S. Ct. at 1373-74. The Court explained that the time-bar provision of § 315(b) is “integral to, indeed a condition on, institution” and that “[b]ecause § 315(b) expressly governs institution and nothing more, a contention that a petition fails under § 315(b) is a contention that the agency should have refused to institute an inter partes review.” Id.  The Court concluded that “[a] challenge to a petition’s timeliness under § 315(b) raises ‘an ordinary dispute about the application of’ an institution-related statute and is barred from appellate review by § 314(d).” Id. (quoting Cuozzo, 136 S. Ct. at 2139).