The Supreme Court Holds Time-Bar Decisions are Not Appealable
In a 7-2 decision by Justice Ginsburg, the Supreme Court held today that §314(d)’s bar on judicial review of the agency’s decision to institute inter partes review precluded appeal of the PTAB's application of §315(b)’s time bar. Thryv Inc. v. Click-To-Call Technologies LP, case no. 18-916.1 The court held that application of the time bar “is closely related to its decision whether to institute inter partes review and is therefore rendered nonappealable by §314(d).” In so doing, the high court overturned the Federal Circuit’s en banc decision in Wi-Fi One, LLC v. Broadcom Corp., 878 F. 3d 1364, 1367 (2018).
In addressing the Cuozzo decision, the Court stated that “A challenge to a petition’s timeliness under §315(b) thus raises ‘an ordinary dispute about the application of’ an institution-related statute.” The Court also dismissed Click-to-Call’s attempt to overturn the Board’s §315(b) ruling based on §319 as an appeal of a final written decision.
Justice Gorsuch dissented, joined in part by Justice Sotomayor, asserting that the majority’s decision “carries us another step down the road of ceding core judicial powers to agency officials and leaving the disposition of private rights and liberties to bureaucratic mercy.”
Unfortunately, the question of whether a complaint voluntarily dismissed without prejudice can trigger §315(b)’s time bar (Click-to-Call Technologies, LP v. Ingenio, Inc., 899 F. 3d 1321, 1328, n. 3 (Fed. Cir. 2018)) was not addressed. The Court stated in a footnote (3) that the question was outside the scope of this review. The obvious takeaway from today’s decision is that §314(d) means what it says, “The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.”
1 In the interest of disclosure, my partners Adam Charnes and Mitch Stockwell represented the Petitioner in the case.
While we are pleased to have you contact us by telephone, surface mail, electronic mail, or by facsimile transmission, contacting Kilpatrick Townsend & Stockton LLP or any of its attorneys does not create an attorney-client relationship. The formation of an attorney-client relationship requires consideration of multiple factors, including possible conflicts of interest. An attorney-client relationship is formed only when both you and the Firm have agreed to proceed with a defined engagement.
DO NOT CONVEY TO US ANY INFORMATION YOU REGARD AS CONFIDENTIAL UNTIL A FORMAL CLIENT-ATTORNEY RELATIONSHIP HAS BEEN ESTABLISHED.
If you do convey information, you recognize that we may review and disclose the information, and you agree that even if you regard the information as highly confidential and even if it is transmitted in a good faith effort to retain us, such a review does not preclude us from representing another client directly adverse to you, even in a matter where that information could be used against you.