Supreme Court of the United States

In 2011, Congress enacted major patent reform in the Leahy-Smith America Invents Act (AIA). The AIA, among other things, created inter partes review (IPR), an adversarial procedure during which the U.S. Patent & Trademark Office’s (PTO’s) Patent Trial & Appeal Board (PTAB) reviews the validity of issued patents. In particular, IPR allows any person, other than the patentee, to petition the PTAB for review of a patent. After receiving a petition, the PTAB may institute an IPR if it determines that “there is a reasonable likelihood that the petitioner would prevail.” However, 35 U.S.C. § 315(b) (the so-called “time-bar”) provides that the PTAB may not institute an IPR if the petition “is filed more than 1 year after the date on which the petitioner . . . is served with a complaint alleging infringement of the patent.” Under 35 U.S.C. § 314(d) (the so-called “no-appeal provision”), moreover, the PTAB’s determination to institute an IPR “under this section shall be final and nonappealable.” In Thryv, Inc. v. Click-to-Call Technologies, LP, decided on April 20, 2020, the Supreme Court interpreted the no-appeal provision broadly by holding that the PTAB’s determination that an IPR is not time-barred falls within § 314(d) and therefore may not be appealed. (The case was previewed before argument in this CRS sidebar.) The decision in Click-to-Call may have considerable implications for the breadth of the PTAB’s authority moving forward.