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ARTICLE · 15 MAY 2020

PTAB Determination On One-Year Time Bar Cannot Be Appealed

Marshall, Gerstein & Borun LLP
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The Supreme Court held that PTAB decisions instituting IPR are final and non-appealable and that the language of 35 U.S.C. § 314(d) "indicates that a party generally cannot contend on appeal that the agency should have refused "to institute an inter partes review."

United StatesIntellectual Property
Julianne Hartzell
Julianne Hartzell
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On April 20, 2020, the Supreme Court held that PTAB decisions instituting IPR are final and non-appealable and that the language of 35 U.S.C. § 314(d) "indicates that a party generally cannot contend on appeal that the agency should have refused "to institute an inter partes review." Thryv Inc. v. Click-To-Call Technologies LP, case number 18-916, 2020 WL 1906544 at *4, __S.Ct. __ (2020).

The Court's analysis turned on the scope of § 314(d)'s language that the "determination by the Director whether to institute an inter partes review [IPR] under this section shall be final and nonappealable." Section 315(b) states that an IPR may not be instituted if the petition 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 patent infringement." Thus, the question for the Court was whether the Board's decision on the one year time bar set forth in § 315(b) falls within the

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