By statute, the U.S. Patent and Trademark Office can be asked to conduct an inter partes review to reconsider the validity of an earlier-granted patent claim. However, 35 U.S.C. sec. 315(b) requires that a request for inter partes review must be brought within one year after suit against the requesting party for patent infringement. The Office’s determination of whether to institute such a review is “final and unappealable” under Section 314(d). In Thryv, Inc. v. Click-to-Call Technologies, LP, Thryv sought inter partes review of patents granted to Click-to-Call. Click-to-Call argued that Thryv’s request was untimely as it was beyond the one-year deadline. The Office rejected Click-to-Call’s argument, instituted review, and ultimately cancelled some of Click-to-Call’s patent claims. Click-to-Call appealed, and the Federal Circuit held that the Office should not have instituted inter partes review because the request was untimely, and so vacated the results.
The Court, in a 7-2 decision by Justice Ginsburg, reversed, holding that Section 314(d) precluded judicial review of any inter partes decision, including whether a request for such review was timely. The majority held that the statute barring review clearly applied to the determination of whether the request itself was valid. Justice Gorsuch, joined by Justice Sotomayor, dissented, arguing that Section 314(d)’s prohibition of review expressly did not apply to the time limit statute, and judicial review should have been permitted. A link to the opinion is here: