Supreme Court—AIA Precludes Judicial Review of PTAB’s Decision to Institute Inter Partes Review: Court Holds 35 U.S.C. § 314(d) Generally Precludes Appeals of PTO IPR Institution Decisions, Including Decisions Regarding Whether the IPR Is Time-Barred Under § 315(b).

Sullivan & Cromwell LLP - April 21, 2020
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Inter Partes Review (“IPR”), as established by the passage of the America Invents Act (“AIA”) in 2011, has been a widely employed procedure for third parties, typically but not exclusively accused of infringement, to challenge the validity of issued patents before the Patent Trial and Appeal Board (“PTAB”) on the basis of certain printed prior art.  In light of statutory language precluding appeal of some PTAB decisions, courts have regularly struggled with precisely what is appealable.  On April 20, 2020, in Thryv, Inc. v. Click-to-Call Technologies, LP,  the U.S. Supreme Court held that § 314(d) of Title 35 of the United States Code precludes a patent owner from appealing the grant of an IPR petition because the petition was untimely under § 315(b).  Reaffirming its decision in Cuozzo Speed Technologies, LLC v. Lee,  the Court held that § 314(d) forecloses appeal of decisions that are grounded in “statutes related to” the PTAB institution decision.