In Thyrv, Inc. v. Click-to-Call Technologies, LP, the Supreme Court held that a Patent Trial and Appeal Board (PTAB) determination on whether a petition is filed timely for inter partes review (IPR) is not appealable.
As background, an IPR permits a petitioner to request the review the validity of claims in view of written prior art. To institute the review, PTAB must find that the petitioner is likely to succeed with respect to at least one claim and the petition was timely filed (within one year of service of an infringement complaint).
In other words, the Supreme Court states 35 USC § 314(a) permits the patent owner no appeal to the Federal Circuit from an incorrect PTAB decision that a petition was timely filed as required in 35 USC § 315(b). Note in this case the infringement complaint (dismissed without prejudice) was filed 12 years before the IPR petition!
Thus, a patent owner must make every effort to win on the merits of the institution decision and the untimeliness of the petition before PTAB. On the other hand, if the IPR is instituted, the patent owner can still appeal a final decision of invalidity to the Federal Circuit.
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