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ARTICLE · 29 MAY 2020

Thryv Continues To Simplify CAFC Appeal Docket

Ropes & Gray LLP
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The SCOTUS re-calibrated the PTAB's appeal bar in Thryv, Inc v. Click-To-Call Techs., LP., explaining that potential violations of 35 U.S.C. § 315(b) were too closely related to the institution...

United StatesIntellectual Property
Scott A. McKeown
Scott A. McKeown
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PTAB Appeals Focused on Merits

The SCOTUS re-calibrated the PTAB's appeal bar in Thryv, Inc v. Click-To-Call Techs., LP., explaining that potential violations of 35 U.S.C. § 315(b) were too closely related to the institution determination of the agency to escape the appeal bar. Since that time, the Federal Circuit has considered at least two additional issues that it may no longer have the ability to consider on appeal: RPI/privity disputes, and determinations that a patent qualifies as a Covered Business Method (CBM) patent.

As to RPI/privity, those disputes are now barred from appeal.

In ESIP Series 2, LLC v. Puzhen Life USA, LLC, (precedential) the Patent Owner argued that petitioner had failed to identify all "real parties in interest" and thus the Board erred when it considered institution of inter partes review. The Court found, post-Thryv, that the Board's § 312(a)(2) real-party-in-interest determination is final and non-appealable, explaining (here):

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