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Thryv, Inc. v. Click-to-Call Technologies (S. Ct. Apr. 20, 2020)

The Supreme Court of the United States held that the application of 35 U.S.C. §315(b)'s one-year time bar by the Patent Trial and Appeal Board is final and nonappealable under 35 U.S.C. §314(d).

The Court referred to its reasoning from Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. ___ (2016), which suggested that §314(d) could preclude review in cases: (1) where a litigant challenges the Director’s reasonable likelihood of success determination under §314(a), or (2) where a litigant “grounds its claim in a statute closely related to that decision to institute inter partes review.” In this particular case, the Court explained that "[t]he agency’s application of §315(b)’s time limit... is closely related to its decision whether to institute inter partes review and is therefore rendered nonappealable by §314(d)."

This case overrules the en banc Federal Circuit decision in Wi-Fi One, LLC v. Broadcom Corp from 2018 which held that “time-bar determinations under §315(b) are appealable” notwithstanding §314(d).

Here are some facts that lead to the lawsuit: Inforocket.Com, the exclusive licensee of U.S. Pat. 5,818,835 owned by Click-to-Call, had sued Keen, Inc. in 2001. This suit was dismissed without prejudice after Keen acquired Inforocket. Thereafter, Keen became Ingenio, which filed in 2003 the inter partes review petition at issue, and Ingenio later became Thryv. Click-to-Call asserted that the 2001 suit started the one-year clock under 35 U.S.C. §315(b) and that the petition was time-barred. But the Board disagreed and instituted review.

Read the case here.




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